The Issue Whether Luis A. Gonzalez earned a passing grade on the Professional Engineer Examination of April 14-15, 1988?
Findings Of Fact Luis A. Gonzalez took the Professional Engineer Examination administered by the Department of professional Regulation on April 14-15, 1988. By notice dated July 22, 1988, Mr. Gonzalez was informed by the Respondent's Office of Examination Services that he had failed the Professional Engineer Examination. Question 122 on the Principles & Practices of Engineering Examination, Form 8804, involving Civil/Sanitary/Structural engineering, provided the following: SITUATION: An old, large, retirement community apartment complex has reported sewer overflow and plumbing discharge problems. You are an engineer assigned to review the flow and sizing of the one main sanitary sewer exiting and carrying the total flow of the complex, with the objective of correcting the problem. Review with the manager, and inspection of the plans, reveal there are 490 residential units with an estimated continuing residence population of 1,475. Water bills are paid individually. REQUIREMENTS: NOTE: Use and-show equations for calculations. Do not use a nomograph or hydraulic slide rule. Citing your assumptions and sources, calculate the average, maximum, and minimum sanitary wastewater flows expected, in gallons per day, from the total complex. You measure the main sewer from the project and examine the plans and find it is 10" round ID, VCP, with a slope of 0.0045. Inspection leads to an estimate of n 0/015 (fair) because of age. Calculate theoretical full flow capacity and velocity with no surcharge. Calculate depth and velocity of flow for your estimated maximum flow rate, if you can conclude the sewer is not overloaded. Mr. Gonzalez was instructed to include assumptions and citations in support of his answer to Question 122. The citations included by Mr. Gonzalez in answering part (a) of Question 122, although questioned by the grader of Question 122, were adequate. Mr. Gonzalez failed to list assumptions which he should have taken into account in answering part (a) of Question 122, concerning inflow, infiltration or exfiltration. In answering part (a) of Question 122, Mr. Gonzalez determined "estimated flow." In calculating estimated flow, Mr. Gonzalez multiplied the population of the complex (1,475) times an estimated water use per person of 100 gallons per day. In support of Mr. Gonzalez's use of 100 gallons per person water use, Mr. Gonzalez cited the Civil Engineering Reference Manual, Fourth Edition, and the ASCE Manual on Engineering Practice No. 36. Mr. Gonzalez also provided other references at the formal hearing to support his use of 100 gallons per day. The use of 100 gallons a day per person in answering part (a) of Question 122 by Mr. Gonzalez would be correct only if the problem involved a residential community. The citations used by Mr. Gonzalez indicate that 100 gallons per day is generally acceptable for residential communities or "[i]n the absence of any better basis . . . ." Question 122, however, involves an apartment complex and not a residential community. The weight of the evidence presented at the formal hearing indicates that for an apartment complex an estimated water use of 60 to 80 gallons per day per person should be used. Even some of the references provided by Mr. Gonzalez at the formal hearing support this conclusion. For example, Petitioner's exhibit 5 indicates that a wastewater flow of 67 to 79 gallons per person per day should be used for "[m]ultiple-family dwellings (apartments)." Mr. Gonzalez's use of 100 gallons per day in answering part (a) of Question 122 was incorrect. Mr. Gonzalez failed to demonstrate an adequate understanding of flow in answering Question 122. Although Mr. Gonzalez demonstrated an understanding of full flow, he failed to demonstrate an understanding of partial flow. Mr. Gonzalez's answer to part (b) of Question 122 was adequate. Mr. Gonzalez's answer to part (c) of Question 122 was incorrect. Mr. Gonzalez did not dispute this conclusion at the forma1 hearing. Mr. Gonzalez was awarded a score of 4 for his solution of Question 122. Question 122 was graded pursuant to the National Council of Engineering Examiners Standard Scoring Plan Outline (DPR Exhibit #4). This Outling provides that a grade of 4 is to be awarded under the following circumstances: UNQUALIFIED: Applicant has failed to demonstrate adequate knowledge in more than one ASPECT of one CATEGORY. BU. Fails to demonstrate an understanding of flow and velocity calculations for pipes flowing full or partially full; or contains multiple errors; or one part is missing or wrong with other gross or multiple errors; or the record is deficient; or in combination. A grade of 5 was to awarded under circumstances similar to the circumstances for awarding a score of 4, except that a score of 5 is appropriate only if an "[a]pplicant has failed to demonstrate adequate knowledge in [only] one ASPECT of one CATEGORY." The Respondent properly concluded that Mr. Gonzalez is entitled to a score of 4 for his answer to Question 122 and not a score of 5. Mr. Gonzalez failed to "demonstrate an understanding of flow . . . calculations for pipes flowing . . . partially full . . . ." His answer also "contains multiple errors" and at least "one part is . . . wrong." Finally, Mr. Gonzalez's answer to Question 122 "failed to demonstrate adequate knowledge in more than one ASPECT of one CATEGORY" as opposed to "[only] one ASPECT of one CATEGORY." [Emphasis added]. Question 123 of the Principles & Practice of Engineering Examination, Form 8804, involving Civil/Sanitary/Structural engineering, includes parts (a) through (j). Mr. Gonzalez questioned parts (b), (d) and (e) of Question 123. In pertinent part, Question 123 provides the following: SITUATION: In a detailed study of traffic flow on one lane of a 2-lane urban freeway, the following data were collected: Average Distance between the front bumper of successive vehicles 75 feet Space Mean Speed = 33 mph Time Mean Speed = 32 mph REQUIREMENTS: (b) Determine the traffic density. Assuming that the 30th highest hourly volume is to be used for design purposes on this highway, what is a reasonable estimate of the 30th highest hourly volume in one direction on this facility? Briefly justify any assumptions made. Determine the most widely accepted value of the capacity of a freeway lane operating under ideal conditions of uninterrupted flow. Mr. Gonzalez was instructed to include assumptions and citations in support of his answer to Question 123. Mr. Gonzalez answered part (b) of Question 123 by calculating a density of 70.40. The grader of Question 123 circled this answer and wrote "DECIMAL." The Respondent agreed at the formal hearing that the use of decimals by Mr. Gonzalez was insignificant. In answering part (d) of Question 123 Mr. Gonzalez failed to include adequate assumptions. Although the statements made by Mr. Gonzalez in answering part (d) of Question 123 are correct, his equation is wrong. Mr. Gonzalez did not offer adequate proof at the formal hearing that his response to part (d) of Question 123 was correct. In answering part (e) of Question 123 Mr. Gonzalez assumed a capacity of 2,000 cars per hour. The grader of Question 123 indicated that this capacity is an "obsolete value." The Solutions to be used in grading the Professional Engineer Examination and, in particular, Question 123, indicates the following: Based on the 1985 Highway Capacity Manual or other similar sources, the capacity of a multi-lane freeway lane operating under ideal conditions is 2,000 vehicles per hour. ANSWER Although Mr. Gonzalez's answer to part (e) of Question 123 is consistent with this solution, the capacity of a multi-lane freeway lane operating under ideal conditions, based on the 1985 Highway Capacity Manual is actually 2,800 vehicles per hour and not 2,000 vehicles per hour. The answer to part (e) of Question 123 provided in the Solutions used by graders of the Professional Engineer Examination and Mr. Gonzalez's answer are therefore incorrect. The Solutions provided to graders are to be used only to assist graders and are not binding on them. Although Mr. Gonzalez's answer to part (e) of Question 123 is consistent with the Solutions provided, the answer is incorrect. Therefore, the grader properly took into account Mr. Gonzalez's incorrect solution to part (e) of Question 123. Even if Mr. Gonzalez is given credit for his response to part (e) of Question 123, his grade for Question 123 will not change. Mr. Gonzalez correctly answered parts (a)-(c) and (f)-(j) of Question 123. Mr. Gonzalez was awarded a score of 8 points for his answer to Question 123. Question 123 was graded pursuant to a Six Level Item Specific Scoring Plan (155P). The Plan provides that a grade of 8 is to be awarded under the following circumstances: CLEARLY QUALIFIED: All categories satisfied with at least one at a higher than minimum level. Correct approach but a solution with math errors or answers outside allowable tolerances for parts (d), (e), and (h) or An [sic] slightly incomplete solution. The next highest grade which can be awarded for Question 123 is 10 points, the maximum award possible for Question 123. Ten points are to be awarded under the following circumstances: HIGHLY QUALIFIED: All categories satisfied. -Presentation -may lack in completeness or equations, diagrams, orderly steps in solution, etc. Results within allowable tolerance. Correct approach and correct solution within allowable tolerances for parts (d), (e), and (h) and correct interpretation of results. All parts complete. The Respondent properly concluded that Mr. Gonzalez is entitled to a score of 8 for his answer to Question 123 and not a score of 10. Mr. Gonzalez did not satisfy all categories and he failed to arrive at the "correct solution within allowable tolerances for parts (d), [and] (e) . . . " in answering Question 123. Mr. Gonzalez failed to prove that he should have been awarded a score of 10 for Question 123. Mr. Gonzalez failed to prove that he should be awarded an additional point on the Professional Engineer Examination of April 14-15, 1988.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Engineers issue a final order concluding that Luis A. Gonzalez's grade on the Professional Engineer Examination of April 14- 15, 1988, was a failing grade. DONE and ENTERED this 6th day of April, 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 6th day of April, 1989. APPENDIX Case Number 88-6056 Mr. Gonzalez has submitted a letter dated March 21, 1989, containing 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 Respondent did not file a proposed recommended order. Mr. Gonzalez's Proposed Findings of Fact Paragraph Number in Recommended Order of Acceptance or Reason for Rejection Paragraphs 1-2, 6 Not proposed findings of fact. Paragraph 3 The first sentence is a statement of the issue concerning Question 122. The second and third sentences are not supported by the weight of the evidence. The Florida Department of Environmental Regulation established water per day usage is for regulatory purposes and not necessarily consistent with the engineering principles to be used in answering questions on the Professional Engineer Examination. References which should have been used in answering Question 122 indicate that a water use rate of 67 to 79 gallons per day should have been used for apartments. The letter referred to was not accepted into evidence and can not form any basis for a finding of fact. Paragraph 4 The first and fifth sentences are accepted in findings of fact 20 and 21. The second and fourth sentences are not relevant to this proceeding. The third sentence is based upon a letter apparently received after the formal hearing. It cannot be taken into account in this proceeding. The sixth sentence is not supported by the weight of the evidence. The grader used the correct information and not "personal conviction." Although it is true that Mr. Gonzalez used the most recent data he was aware of concerning vehicles per hour, the fact remains that the value he used at the time of the examination was incorrect. Paragraph 5 Not supported by the weight of the evidence. Mr. Gonzalez included two references with his letter of March 21, 1989, which were not offered at the formal hearing. Those references cannot be relied upon in this case and have played no part in making the findings of fact and conclusions of law in this Recommended Order. COPIES FURNISHED: H. Reynolds Sampson Deputy General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Luis A Gonzalez 7419 Sandy Bluff Drive Jacksonville, Florida 32211 Kenneth Easley General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Allen R. Smith, Jr. Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether Petitioner should have received a passing score on the SCBA (Self Contained Breathing Apparatus) section of the Bureau of Fire Standards and Training's Minimum Standards Practical Examination re-test administered on March 1, 2001.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: On November 15, 2000, after completing a training course at the Broward Fire Academy (where Lawrence Burns was his lead instructor), Petitioner took the Bureau of Fire Standards and Training's Minimum Standards Written and Practical Examinations. He received a passing score on the Written Examination and all sections of the Practical Examination, except for the SCBA section. On March 1, 2001, Petitioner re-took the SCBA section of the Practical Examination. The re-test was administered at the State Fire College in Ocala, Florida. Ralph Chase, a field representative with the Bureau of Fire Standards and Training, was Petitioner's examiner. Mr. Chase has been employed as a field representative with the Bureau of Fire Standards and Training for five years. Prior to coming to work for the Bureau of Fire Standards and Training, he was a firefighter with the City of Titusville for 21 years. He was a suppression lieutenant at the time he left the city's employ. Petitioner borrowed from the Broward Fire Academy the equipment that he needed for the re-test: two air tanks, a regulator, a harness, and a PASS device. A PASS device is a safety device worn by firefighters entering a hostile environment. When the device is activated in the automatic mode, it will emit a continuous, piercing sound if the firefighter is immobilized for longer than 30 seconds. To place the device in the automatic mode, a plastic switch must be moved into the appropriate position. When properly positioned in the automatic mode, the device makes a brief, chirping sound. It was emphasized to Petitioner during his training at the Broward Fire Academy that it was the responsibility of the student, before leaving the Academy with borrowed equipment, to inspect the equipment to make sure that the equipment was in good working order. Before leaving the Academy with the equipment that he borrowed for the re-test, Petitioner twice inspected the equipment and ascertained that it was in good working order. At the re-testing site, he re-inspected the borrowed equipment. The re-inspection revealed that all of the equipment was in good working order, except for the regulator. Petitioner obtained another regulator, along with a harness, at the re-testing site. He attached the PASS device that he had borrowed from the Broward Fire Academy to the harness and ascertained that "[e]verything was working properly." Before the re-test began, Mr. Chase advised Petitioner that "exceeding the maximum allotted time and/or failure to wear and activate the PASS device in the automatic mode w[ould] constitute an automatic failure for the SCBA evaluation." He further advised Petitioner to "speak loudly and clearly" if Petitioner wanted to tell Mr. Chase "anything during the testing." After Petitioner indicated that he was ready, the re- test began. Throughout the re-test, Mr. Chase stood "only a few feet" in front of Petitioner and watched him intently, focusing upon his hands. Petitioner signaled that he was "done" by clapping his hand. He finished the re-test in one minute and 16 seconds, well within the allotted time. At no time during the re-test, however, did Petitioner make an effort to place the PASS device in the automatic mode. Because he had neither seen Petitioner make such an effort, nor heard the chirping sound that is made when a PASS device is activated in the automatic mode, Mr. Chase walked up to Petitioner after Petitioner had signaled that he was "done" and confirmed that the PASS device switch was in the "off" position. Mr. Chase did not say anything to Petitioner about it. He simply told Petitioner to take off his mask. Shortly thereafter, Petitioner walked up to Mr. Chase and stated, "You know I turned my alert, my PASS alert off." Mr. Chase responded that he did not know what Petitioner meant, to which Petitioner replied, "I wanted you to know that I turned it . . . on and then I turned it off again." After telling Petitioner that he could not discuss the matter with him, Mr. Chase walked away. Petitioner did not at any time during the re-test tell Mr. Chase that he had placed the PASS device in the automatic mode. At no time at the re-testing site, either before, during, or after the re-test, did Petitioner tell Mr. Chase that there was any problem with the PASS device. Petitioner justifiably received a failing score of zero on the re-test because he had not make any effort to place the PASS device in the automatic mode. Petitioner did not report that there was any problem with the PASS device when he returned it to the Broward Fire Academy.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered rejecting Petitioner's challenge to the failing score he received on the SCBA (Self Contained Breathing Apparatus) section of the Bureau of Fire Standards and Training's Minimum Standards Practical Examination re-test he took on March 1, 2001. DONE AND ENTERED this 25th day of September, 2001, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of September, 2001.
The Issue The issue in this case is whether Petitioner, Gary Cook, should have received a passing score on the Barber Practical Examination taken by him in November 1996.
Findings Of Fact On or about November 25, 1996, Petitioner, Gary Cook, took the Barber Practical Examination (hereinafter referred to as the "Exam"). The Exam was scored by two examiners: Geri Scott and Don Gibson. The Bureau of Testing of Respondent, the Department of Business and Professional Regulation (hereinafter referred to as the "Department") subsequently notified Mr. Cook that he had earned a total score of 70 on the Exam. A score of 75 is considered a passing grade. Mr. Cook was notified by the Department that he earned a total score of 14.00 points on the sanitation portion of the Exam. The maximum score which may be earned for the sanitation portion of the Exam is 25.00. On or about December 30, 1996, Mr. Cook requested a formal administrative hearing to contest the determination of his score on the Exam. Mr. Cook challenged his score on the sanitation portion of the Exam. The sanitation portion of the Exam consists of ten criteria for which points may be earned: Criteria Maximum Score Used proper linen setup for the shampoo 2 Properly stored clean and dirty linen during the shampoo 3 Washed hands before beginning the haircut 2 Used the proper linen setup for the haircut 3 During the haircut tools were replaced in sanitizer after each use 3 Properly stored clan and dirty linen during the haircut 2 Washed hands before beginning the permanent wave 2 Used the proper linen/cottonwrap setup for the permanent wave 3 Kept tools sanitized during the permanent wave 3 Properly stored clean and dirty linen during the permanent wave 2 TOTAL POSSIBLE POINTS 25 The criteria of the sanitation portion of the Exam are designated as "procedures" which candidates are required to meet during the Exam. If both examiners determine that a candidate carried out a procedure, the candidate is awarded the total available points for the procedure. If both examiners determine that a candidate did not carry out the procedure, the candidate is awarded no points for the procedure. Finally, if one examiner determines that a candidate carried out the procedure and the other examiner disagrees, the candidate is awarded half of the available points for the procedure. On the sanitation portion of the Exam Mr. Cook received no points for procedures B-2, C-2, and C-3. Mr. Cook received half the points available for procedures B-4 and C-4. Mr. Cook specifically alleged that he should have been awarded the maximum points for procedures B-2, B-4, C-2, C-3, and C-4. For procedure B-2, the examiners were to determine whether "[t]he candidate used the proper linen setup for the haircut." This procedure was worth a total of 3 points. Both examiners determined that Mr. Cook had not used the proper linen setup. For purposes of procedure B-2, the haircut includes shaving around the outline of the hair. Therefore, proper linen setup for the shave is a part of the haircut. Mr. Cook did not dispute the fact that he had not used the proper linen setup for the shave portion of the haircut. Mr. Cook suggested that the haircut portion of the Exam did not include the shave. The evidence failed to support this assertion. Rule 61GK3-16.001(7)(a)8., Florida Administrative Code, provides that a "haircut" for purposes of barber examinations includes a determination that "[s]ideburns, outline and neckline are clean shaven." See also, Page 7 of the Candidate Information Booklet, Respondent's Exhibit 3. Mr. Cook failed to prove that he fulfilled the requirements of procedure B-2. For procedure B-4, the examiners were to determine whether "[t]he candidate properly stored clean and dirty linen during the haircut." [Emphasis added] This procedure was worth a total of 2 points. One examiner determined that Mr. Cook had not met this criterion. Mr. Cook, therefore, was awarded 1 point for this procedure. The examiner that found that Mr. Cook had not performed procedure B-4 properly determined that Mr. Cook had placed a box of rubber gloves on a bar behind the area in which he was working. The Department has cited no authority which defines the term "linens" as including rubber gloves. The common definition of the term "linens" does not suggest that rubber gloves constitute linens. The term "linen" is defined as follows: 1 a : cloth made of flax and noted for its strength, coolness, and luster b : thread or yarn spun from flax 2 : clothing or household articles made of linen cloth or similar fabric3 : paper made from linen fibers or with a linen finish Webster's Ninth New Collegiate Dictionary 1984. Mr. Cook should have received full credit for procedure B-4. Therefore, Mr. Cook should have received one additional point on procedure B-4. For procedure C-2, the examiners were to determine whether "[t]he candidate used the proper linen/cotton wrap setup for the permanent wave." This procedure was worth a total of 3 points. Both examiners determined that Mr. Cook had not met this criterion. Both examiners determined that Mr. Cook had failed to use a proper cotton-wrap setup. Mr. Cook failed to explain what steps he undertook in setting up for the permanent wave. Mr. Cook, therefore, failed to prove that he fulfilled the requirements of procedure C-2. For procedure C-3, the examiners were to determine whether "[t]he candidate kept tools sanitized during the permanent wave." This procedure was worth a total of 3 points. Both examiners determined that Mr. Cook had not met this criterion. Both examiners determined that Mr. Cook had placed rods used for the permanent on the back bar. Mr. Cook failed to prove that the did not leave rods on the back bar while performing the permanent wave. Mr. Cook, therefore, failed to prove that he fulfilled the requirements of procedure C-3. For procedure C-4, the examiners were to determine whether "[t]he candidate properly stored clean and dirty linen during the permanent wave." This procedure was worth a total of 2 points. One examiner determined that Mr. Cook had not met this criterion. The examiner who found that Mr. Cook had not met this criterion determined that Mr. Cook had left end-wraps on the back bar. Mr. Cook failed to prove that he did not leave end- wraps on the back bar. Mr. Cook, therefore, failed to prove that he fulfilled the requirement of procedure C-4. All of the criteria for the sanitation portion of the Exam are listed in a Candidate Information Booklet for the Barber Examination. See page 6 of Respondent's Exhibit 3. The booklet also explains the scoring procedure. Mr. Cook proved that he should have been awarded one additional point on the sanitation portion of the Exam. Therefore, Mr. Cook earned a total score of 71 on the Exam. Mr. Cook's score is below a passing score of 75.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department of Business and Professional Regulation, Barbers Board, finding that Gary Cook should have received a total score of 71 on the Barbers Practical Examination of November 1996. DONE AND ENTERED this 2nd day of September, 1997, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 2nd day of September, 1997. COPIES FURNISHED: Gary Cook 202 Mulberry Circle Crawfordville, Florida 32327 R. Beth Atchison, Assistant General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Joe Baker Department of Business and Professional Regulation Board of Barbers 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact On September 19, 1979, Lester Nelson, Hospital Consultant for the Petitioner, conducted a survey of Monticello Manor and discovered certain Class III deficiencies, one of which was roach infestation in the cabinets beneath the kitchen sink. Ms. Rhoades was present on that date and was aware of the deficiencies to be cited. The facility was notified by letter dated October 22, 1979, that the deficiencies cited were to be corrected by November 1, 1979. A revisit of the nursing home was made by Mr. Nelson on November 27, 1979, by which time all deficiencies had been corrected with the exception of the roach infestation. On that date, roaches were observed in three of the five cabinets inspected. At the time of the September 19 survey, Monticello Manor had in effect a Service Agreement with Truly Nolen for pest control services. In addition, a maintenance man was spraying the premises twice a week. On December 1, 1979, Respondent entered into a contract with a different exterminating company after cancelling its contract with Truly Nolen.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED THAT: The Department of Health and Rehabilitative Services enter its final order imposing a civil penalty in the amount of one hundred dollars against the Respondent. RECOMMENDED this 3rd day of June, 1980, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings Department of Administration Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the clerk of the Division of Administrative Hearings this 3rd day of June, 1980. COPIES FURNISHED: Harold L. Braynon, Esquire District X Legal Counsel Department of Health and Rehabilitative Services 91 West Broward Boulevard Fort Lauderdale, Florida 33301 Ms. Carolyn Rhoades Administrator Monticello Manor 1701 North Federal Highway Fort Lauderdale, Florida 33308 Steven W. Huss, Esquire Staff Attorney Central Operations Services Department of Health and Rehabilitative Services 1317 Winewood Boulevard Tallahassee, Florida 32301 Mr. David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue This cause concerns whether the Respondent committed certain violations of Chapter 471, Florida Statutes (1989), governing the regulation of licensure and practice of Professional engineers in the State of Florida by certain alleged negligent acts with regard to the preparation of plans for a building and alleged engagement in the practice of architecture beyond the scope of authorized engineering practice.
Findings Of Fact The Petitioner is an agency of the State of Florida charged, in pertinent part, with regulating the practice of engineering pursuant to Section 20.30, Florida Statutes, Chapters 455 and 471, Florida Statutes, and with enforcing the licensure standards for registered professional engineers in the State of Florida. The Respondent is a licensed engineer, licensed by the State of Florida, holding license number PE 0029985. His address of record is Charles Stokes Engineering, 3000 Highway 231, North, Lynn Haven, Florida 32404. In 1989, the Respondent contracted with James Carlton to prepare building plans for a restaurant known as the Crab Shanty in Panama City Beach, Florida. Numerous changes were effected in the plans, both before and during construction, such that the restaurant evolved finally as a three-story restaurant built primarily of wood with utility-pole type pilings or posts and beams for framing, including glued-laminated wood beams (glue-lam). An initial set of plans (Petitioner's Exhibit 1) were submitted to the Bay County Building Official, Mr. James Pybus. While the initial 11-page plans depicted in Petitioner's Exhibit 1 lacked some detail, especially with regard to electrical, plumbing, air conditioning and mechanical aspects, the plans were later augmented by an additional 11 pages depicting some of the previously absent details and Mr. Pybus confirmed that the practice of his agency is not to require more detailed plans of such electrical, plumbing, air conditioning, or mechanical work, if it comes within the scope of the exceptions set forth in Section 471.003(2)(i), Florida Statutes (1989). Those exceptions provide that licensed subcontractor, in those fields can design the electrical, plumbing, air conditioner, or mechanical aspects of a project themselves if they have the appropriate contractor's licenses without engineering registration. Therefore, Mr. Pybus' agency does not require that engineers preparing such plans, as to these aspects of the planning work, include such details if licensed contractors for those areas of the construction project will be doing the design and installation work, which was the case in this situation. Personnel under Mr. Pybus' direction inspected the building during construction and preformed a final inspection, all of which confirmed that the construction was in accordance with appropriate building codes. Mr. Pybus opined that his office had reviewed the plans submitted and determined that the plans had depicted sufficient detail for construction in accordance with the applicable codes. The Petitioner presented a consulting engineer, Mr. Harold Benjamin, as an expert witness. Mr. Benjamin opined that the Respondent had exceeded the limits of his engineering experience by signing and sealing plans which entailed mechanical engineering, electrical engineering, and, to some extent, the field of architecture. The Respondent, however, has worked for many years in the nuclear power industry, during which time he was actively involved in electrical, structural and mechanical engineering and design which, by this extensive experience, qualified him to sign and seal plans covering the fields of mechanical and electrical engineering. The evidence to this extent refutes the testimony of Mr. Benjamin, and it is rejected in this regard. Further, although the Respondent preformed a minor amount of architectural work in designing the building, the architectural aspects of his building design were clearly incidental to the major considerations of civil, mechanical, structural, and electrical engineering. Even Mr. Benjamin, the Petitioner's witness, conceded that the architectural aspect of the design work was incidental to the overall plan and design work involved and was on the order of approximately ten percent of the Respondent's work on the project. Mr. Benjamin testified that he observed certain omissions on the plans contained in Petitioner's Exhibit 1. Those omissions involve not showing the proper type of support for some stairs, a foundation plan not being labeled, wall sections not being properly shown, and an absence of an "electrical legend" on the face of the plans. He opined that heating and air conditioning plans were unclear as to duct size, air delivery and quantities to various rooms. Mr. Benjamin acknowledged, however, that he was basing this testimony on only the plans depicted in Petitioner's Exhibit 1, which consisted of the first 11 pages and it was shown that this was not the complete set of plans actually drawn and ultimately filed with the building department by the Respondent, which consisted instead of a total of 22 pages which showed much more detail then Mr. Benjamin had reviewed and upon which he based his testimony. Mr. Benjamin only saw the remaining portion of the plans in question very briefly shortly prior to hearing and acknowledged that many of the omissions had been supplied on the additional plan sheets. Mr. Benjamin also acknowledged in his testimony that flaws in the design alleged by a Mr. Coleman, a "complaining architect" had not been proven in his view and, therefore, the Respondent was not negligent in his design. Upon redirect examination, Mr. Benjamin acknowledged that he only opined that the Respondent was negligent in terms of not consulting with qualified electrical and mechanical engineers with regard to the project because of his previously discussed opinion that the Respondent's engineering experience or expertise did not extend to electrical and mechanical engineering. This opinion, however, has been refuted as delineated above. Concerning the structural design aspects of the building and plans, in view of Mr. Benjamin's letter report to the Department of June 12, 1989, coupled with Mr. Benjamin's testimony that he did not do a complete review of the plans and did not examine the building itself, Mr. Benjamin's testimony has not established any negligence on the part of the Respondent. It affirmatively establishes that any architectural practice the Respondent may have engaged in was only incidental to his engineering design work for the project as a whole. Further, the testimony of Mr. Benjamin to the effect that the air conditioning system appeared to him inadequate to handle the peak load, as generated by restaurant occupancy of nearly 100 people and the restaurant kitchen, it was demonstrated at page 41 of the transcript that Mr. Benjamin had not observed the restaurant and kitchen space at the building in question and was not aware of what the actual occupancy of the restaurant was. Therefore, he is not deemed competent to express expert opinions concerning the adequacy of the air conditioning equipment and design. The Petitioner also presented the testimony of Mr. Berton Hufsey, a mechanical engineer. He was accepted as an expert witness in this field. Mr. Hufsey initially expressed criticism about certain plumbing and HVAC (heating, ventilating and air conditioning) aspects of the plans. Mr. Hufsey acknowledged, however, that because his practice is in the Miami, Florida, area, he was not familiar with the extent of detail customarily shown on engineering plans in the Bay County area and, thus, was not familiar with the professional practice standards in the Bay County area in that regard. Mr. Hufsey initially opined that the grease trap for the restaurant was inadequately sized and that all kitchen and bathroom waste were routed though the grease trap; that the toilet vent was a "dry vent" and that a wet vent, which washes the bottom of the vent pipe, should have been employed. He criticized the absence of details of the water heater and the kitchen ventilating system not being shown to be coordinated and balanced, but acknowledged that two fans were shown and appeared to balance. He also opined that the plans did not show an innerconnect to shut off heat producing equipment when the fire extinguisher system was operating, that exhaust fans or windows were not shown for the bathroom/toilet area, that the gas furnace was not shown to have a flue connection, and that the HVAC system was not shown to have a condensate water drain. Mr. Hufsey acknowledged in his testimony, however, that he thought, based upon this opinion and review of the initial set of the 11-page plans he had reviewed in making his recommendation to the Department, that the complaint had some validity but he would not go so far as to testify that negligence had occurred. Then, when confronted in his testimony by the as-built" plans, which he only saw on the day of the hearing, Mr. Hufsey acknowledged that the grease trap was properly designed, that the kitchen supply and exhaust fans were also appropriately detailed on the as-built plans, as well as the fire sprinkler system, and the air conditioning system. In summary, after reviewing the actual as-built, 22-page set of numbered and sealed plan sheets prepared by the Respondent, Mr. Hufsey acknowledged that the omissions and lack of detail noted on the first 11-page set of "rough plans" had been corrected with the exception of the "dry vent" for a toilet. Mr. Hufsey, however, acknowledged in regard to this that an experienced, qualified plumbing contractor would know the correct type of vent to install for the toilet, even if it was not actually depicted on the plans, and acknowledged that professional engineering practice in Florida provides that certain types of jobs can be designed and built by the licensed trade contractors such as plumbers, electrical contractors and mechanical contractors and that these types of trade contractors can design and build the plumbing, heating and air conditioning, and electrical aspects of a job such as this without having the design actually placed in the plans by the licensed registered engineer. See the exception contained in Section 471.003(2)(i), Florida statues (1989). Moreover, the Respondent, in his plans, affirmatively indicated that the sprinkler system had to take priority in its design and location over the mechanical, heating, air conditioning equipment and duct work, as well as the plumbing piping. This was a safety feature in order to ensure that the sprinkler system had effective coverage in the event of fire. Because of this safety feature, noted on the plans by the Respondent engineer, there necessarily had to be some degree of flexibility for installing the HVAC, the duct work~ and the plumbing work for those pertinent, licensed trade contractors. This was an additional appropriate reason why specific detail of the plumbing, electrical, and mechanical HVAC aspects of the job were not firmly and finally designed by the Respondent, because of the necessarily precise location of the sprinkler system shown on page 15 of the as-built plans. Thus, because of the exception allowed in the statute for design of HVAC, plumbing, and electrical work by the appropriate, licensed trade contractors and because of the priority the Respondent himself noted on the plans for the sprinkler system design and installation, it has not been shown that the Respondent was negligent in regard to the lack of detail on the plans for HVAC, electrical and plumbing design. Further, Mr. Hufsey acknowledged in his testimony concerning the alleged water heater detail deficiency, the lack of depiction of the air conditioning condensate drain, the furnace flue, and air supply; that experienced, licensed trade contractors in those relevant trades would be able to design and build those features into the building appropriately within the exception allowing them to do so at Section 471.003(2)(i), Florida Statutes. Mr. Garcia testified as an expert in the field of electrical engineering. Mr. Garcia stated that the plans submitted for the permit were deficient as to electrical items, thereby demonstrating negligence. Specifically, Mr. Garcia found that the initially submitted plans depicted no "panel scales"; no electrical risers; no load analysis; no specifications for lighting fixtures; insufficient detail to show compliance with the national electrical code and the energy code; that emergency lighting did not comply with the national electrical code; that no electrical legends were depicted; that circuits were not properly identified for lighting fixtures; that no schedule specifying light fixtures were shown; and that stairs were not shown to have the required emergency lighting. Mr. Garcia acknowledged in his testimony that the later, as-built plans depicted in Petitioner's Exhibit 8 showed that many of these items were corrected, although not all of them. He acknowledged, however, that on a project of this size that a licensed electrical contractor could design and build the required electrical items, equipment, and service, including the items he found not sufficiently depicted on the plans, without the services of a licensed engineer for the design, in accordance with the exception provided at Section 477.033(2)(i), Florida Statutes. Mr. Garcia testified, however, that a prudent engineer, if he omitted such detail from his plans, should make a notation on the plans to that effect to indicate that that design detail was to be provided by the licensed electrical contractor performing that aspect of the job. The Respondent failed to make this notation. The Petitioner presented the testimony of James Owen Power, a structural engineer accepted as an expert witness in that engineering field. Mr. Power expressed criticism concerning the Respondent's plans as demonstrating negligence in the practice of engineering in the following particulars: Sheet 2 of Exhibit 1 shows a roof over the third floor, sheet 3 shows no roof. The details on sheet 5 of Petitioner's Exhibit 1 related to the girder layout indicated glue laminated wood beams with insufficient notes to guide the contractor. The stairs of the south elevation were shown in two locations and did not show proper detail to show attachment to the building, nor that they met life safety standards. Sheet 5 of Petitioner's Exhibit 1, according to Mr. Power, shows a connection of the glued laminated wood member to a girder which was structurally inadequate because of the type and manner of bolting. The plans contained in Petitioner's Exhibit 1 used to obtain the building permit were somewhat confusing because certain irrelevant notes were written on the right hand side of sheet 1 of those plans. The piling construction notes, according to Mr. Power, called for 8 X 8 square pilings or 8 inch round marine treated pilings, but the drawing showed 12 inch round pilings. Sheet 6 of Petitioner's Exhibit 1 is confusing in that it is unclear whether it should be applied to the second or third floor, or just one of those two floors because the sheet specifies metal stud walls but does not indicate the gauge or size of the metal studs, nor did Mr. Power find the details sufficient to show how the walls should be framed at the top under the second floor trusses. Petitioner's Exhibit 1 allegedly shows insufficient detail with regarding to flashing and, finally, Mr. Power opined that there was not proper specification with regard to attachment of sheet metal to an overhang. Mr. Power's testimony was directed to Petitioner's Exhibit 1, the initial preliminary plans submitted for purposes of obtaining the building permit. Although building permit submittal plans should depict sufficient detail to show that a safely constructed building will result which will comply with appropriate building codes, it is not expected, as Mr. Pybus demonstrated, that all details be shown, especially in this case where certain planning details are appropriately and legally left to the designing and building performance of licensed trade contractors for the electrical, plumbing, and HVAC aspects of the building. Mr. Power's testimony does not demonstrate that the plans in Petitioner's Exhibit 1 would not have resulted in a safely constructed building which could comply with the building codes. In any event, the as-built set of plans drawn and designed by the Respondent (Petitioner's Exhibit 8), coupled with Respondent's unrefuted testimony, shows that these alleged deficiencies did not exist or had been adequately depicted in the as-built plans. The alleged improper connection of the glue lamented wood members to girders was actually demonstrated by the Respondent's testimony to be structurally adequate and in accordance with good, safe engineering practices. Concerning the alleged life safety standard violations regarding the stairs, Mr. Power acknowledged he had no architectural expertise, and was not qualified to render such an opinion, and the Respondent's case in chief shows that there was a change order regarding the stairs which legitimately accounts for the two different locations shown. Further, concerning the piling size complaint of Mr. Power, the Respondent demonstrated that the 8 inch sectional dimension of the pilings was the minimum diameter specification, which becomes obvious when it is taken into account that the drawing showed 12 inch round pilings. Accordingly this aspect of Mr. Power's criticism is invalid and is not indicative of negligence in the practice of engineering. The matters concerning the gauge or size of metal stud walls, the flashing, the depiction of roofs for the second and third floors, and the attachment of sheet metal to the overhang involved structural changes made during the course of construction as the result of legitimate agreements between the Respondent and the owner, as well as apparent deficiencies which were actually corrected on the final set of signed and sealed plans. Accordingly, these criticisms from Mr. Power do not reflect inadequacies or negligence in the practice of engineering in this regard either. Further, although Mr. Power expressed criticism concerning non- compliance with the statutory requirement for the drawings to be signed and sealed by the Respondent engineer, on cross examination he acknowledged that the Respondent had- in fact, attached to his final plans a cover letter and an index which had been signed and sealed with the appropriate raised seal and that each sheet of the drawing incorporated under that cover letter by reference was, in turn, appropriately identified by a stamped, red ink seal. Thus, the final plans were appropriately signed and sealed. Finally, it should be pointed out that none of the expert witnesses presented by the Petitioner had viewed the structure involved and none was able to testify competently that the structure had not, in fact, been finally designed, in the final plans, and constructed in a manner which would result in an improperly constructed, unsafe building. The Respondent presented the testimony of Mr. James Carlton, one of the owners of the building. Mr. Carlton established that he retained the Respondent to perform engineering services and that he did not want or need an architect because he had already conceived the architectural design of the building based upon his experience in the restaurant business. Mr. Carlton established that he was satisfied with the services provided by the Respondent and described his close cooperation with him and his supervision of the construction as very satisfactory. In fact, Mr. Carlton described the Respondent as working late at night seven days a week and always readily responding if changes were needed or desired by the owner or the contractors. Mr. Carlton described in detail the structural soundness of the building, even when subjected to 80 MPH winds and the weight and movement of crowds involving hundreds of people, which corroborated the Respondent's own testimony regarding the substantial structural soundness of the resulting building. The Respondent also presented the testimony of Henry Skipper, the contractor who actually constructed the building. Mr. Skipper confirmed that the plans provided adequate guidance for construction and for the work which was to be actually performed by licensed subcontractors in the trades of mechanical, electrical, plumbing, and HVAC. Mr. Skipper corroborated the fact that the Respondent was readily available to assist the contractors and subcontractors and the owner and to ensure that the building was properly constructed at all stages. Mr. Skipper found that the Respondent's plans contained the appropriate amount of detail treatment which he was accustomed to encountering in the preparation and use of building plans in the Bay County construction industry over a period of many years. Mr. Skipper's testimony appearing at pages 110 through 120 of the transcript specifically refutes the claims by Petitioner's witnesses concerning the adequacy of the design or construction of the stairs, the exterior walls, the glue--lam beams, the metal roofing and sheet metal detail, the perimeter walls, and the electrical, mechanical, plumbing, and HVAC aspects of the project. His testimony is accepted. Respondent testified in his own behalf and described his extensive experience as a professional engineer. In refuting the Petitioner's claims that he had worked outside his training and experience in terms of mechanical and electrical engineering, he established that he has many years of experience, derived from the nuclear power industry primarily, as well as to some extent in the sanitary sewer engineering design field by which he acquired extensive expertise in electrical mechanical, as well as structural engineering design. He is a licensed professional engineer in Alabama, Georgia, and Florida, and has been certified by the State of Florida as a Designated, Threshold Engineering Inspector. He has been approved for state employment as a professional engineer-mechanical III and a professional engineer-electrical I. His testimony appearing at pages 147-160 of the transcript together with the testimony of Mr. Skipper, the contractor, and the owner, Mr. Carlton, refutes the Petitioner's criticism concerning his design of the HVAC, plumbing, electrical, and structural aspects of the bui1ding. The Respondent established, in fact, that his design of the laminated beams and the method of connection of them, in fact, exceeded the recognized engineering and structural design requirements. Although various of the Petitioner's witnesses, as well as the Respondent in his testimony, established that sufficient detail concerning the mechanical, electrical, HVAC, and plumbing portions of the project were depicted on the plans so that appropriately licensed trade contractors practicing in those fields of contracting could do the final design and installation of those aspects of the project, the Respondent did not refute the showing by the Petitioner's witnesses that, as to the electrical equipment and service design portion of the project, the Respondent failed to properly note on his plans that flexibility for appropriate design and installation of the electrical segment of the project was being left to the licensed electrical subcontractor. In this regard then, it was established that the Respondent was negligent in the practice of engineering. It was not established that the Respondent engaged in any fraud or misconduct in the practice of engineering however, nor that he practiced architecture beyond the purview of his engineering licensure, in more than an incidental way.
The Issue Whether Petitioner is entitled to additional credit pursuant to his challenge to the examination for civil/sanitary engineer licensure.
Findings Of Fact Petitioner, Brian Trujillo, is a candidate for licensure by examination as a civil/sanitary engineer. Mr. Trujillo took the examination in April of 1998, and received a score of 69. He timely challenged the test results and maintained he should have received a higher score on four items of the examination. In order to achieve a passing score of 70, Petitioner would need to establish he should have been given a raw score of at least 48. Thus, Mr. Trujillo needs credit of one more point in order to pass the examination. At the hearing, Mr. Trujillo limited his challenge to only two problems on the examination which were identified in this record as to Questions No. 87 and No. 125. As to Question No. 87, Mr. Trujillo maintained that based upon the conditions in South Florida, the answer he gave is the correct one of the four choices. Question No. 87 was a multiple-choice question wherein candidates were to choose the best of the four options offered. Mr. Hutchinson explained why the answer provided by Petitioner was not the best choice for Question No. 87. Mr. Hutchinson's explanation was clear, concise, and based upon engineering demands regardless of the location of the project. As to Question No. 125, Petitioner maintained he should have received more points for the answers given. This item was divided into three parts worth a total of 10 points. The score given Petitioner on this item was 8. By his own admission, Mr. Trujillo lacked sufficient time to complete Question No. 125. Based upon the calculations shown by Petitioner, it is difficult to determine how the candidate intended to solve the problem. In the absence of additional comments from a candidate, the examiners reviewing the work must assume a candidate used a consistent problem-solving approach. In order to achieve a score of 10 on this problem, the candidates were required to be within five percent of the approved solution value. Mr. Trujillo did not explain the approach used in his attempt to solve Question No. 125. Two approaches would have yielded correct responses. The answers provided by Mr. Trujillo were inconsistent with a single problem solving approach. Thus, either part B or part C or his answers were incorrect by a margin of greater than ten percent. If the reviewer assumed Petitioner used one approach to solve the items of Question No. 125, he did calculate the problems correctly. If the Petitioner used two different approaches to solve the items of Question No. 125, he did not clearly explain his work in order to demonstrate knowledge of the areas addressed by the question. Question No. 125 required the candidate to solve three subparts based upon a single factual scenario. The question was not ambiguous nor did it require a candidate to use inconsistent theories to arrive at a correct solution.
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 confirming Petitioner's score on the April 1998 examination and dismissing the challenge to it. DONE AND ENTERED this 2nd day of April, 1999, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1999. COPIES FURNISHED: Dennis Barton, Executive Director Board of Professional Engineers 1208 Hays Street Tallahassee, Florida 32301 Natalie A. Lowe, Esquire Board of Professional Engineers 1208 Hays Street Tallahassee, Florida 32301 William Woodyard, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Brian Trujillo 16660 Southwest 92nd Terrace Miami, Florida 33196
Findings Of Fact The Respondent is a duly-licensed professional engineer in the State of Florida having been issued License No. PE0035663. The Petitioner is an agency of the State of Florida charged, in pertinent part, with interpreting, enforcing, and regulating concerning the licensure and professional practice standards for professional engineers in the State of Florida embodied in Chapter 471, Florida Statutes. The Respondent practices engineering as Dr. S.K. Nayak & Associates, Regulatory, Environmental and Civil Engineering Consultants. That engineering firm is not licensed as a professional engineering firm in the State of Florida. On September 20, 1988, the permit to the JNC by the Department for its domestic waste-water treatment and disposal system expired. Thereafter, on June 16, 1989, an application to operate such a system was submitted to the Department by Mr. Cordes on behalf of the JNC. The Respondent was the professional engineer of record depicted on that application. On or about July 14, 1989, the Department issued a notice of permit denial concerning that application and cited six deficiencies as the basis for the denial. The notice of permit denial identified the JNC's reclaimed water distribution system as not being designed in accordance with sound engineering principles and practices, as delineated in Rule 17-6.070(1)(a), Florida Administrative Code, and the design as not being provided in the manner required by Rule 17-610.414, Florida Administrative Code. The permit applicant was thus advised by the notice of permit denial that some modifications for the water distribution and storage system would have to be undertaken and completed in order for permitting to be effected. Thereafter, on or about January 30, 1990, the Respondent submitted a design statement for a reclaimed water disposal system to the Department. The design must conform to certain criteria enunciated in Chapter 17-610, Florida Administrative Code. The design for such a system must be accompanied with an engineering report to document geohydrological conditions at the site and to document that a ground water mounding analysis has been performed for the percolation pond systems, in order to verify that the systems will perform satisfactorily under the pertinent provisions of Chapter 17-610, Florida Administrative Code. The Department considered the design submitted by the Respondent to constitute the necessary design for the application for a new operating permit for the JNC. Expert witness Bryant Marshall's testimony establishes clearly that the creation of the design and its submittal to the Department constitutes a specific type of engineering practice and moreover that that sort of design requires a specific type of geotechnical and geohydrological engineering experience. Upon reviewing the design statement submitted by the Respondent, the Department advised Mr. Cordes of numerous items of incompleteness which would need to be addressed before an evaluation of the proposal, including design, could be performed. Mr. Cordes was informed of this by letter from the Department of February 23, 1990, which was copied to the Respondent. See, Exhibit B in evidence. Upon reviewing the design submitted, the Department determined that, because of the limited data and analyses and absence of calculations in that design document, that the Respondent had not demonstrated that he was qualified to perform such geotechnical and hydrogeological engineering, with pertinent calculations and depictions as was required for a project such as that proposed, nor had that type of required engineering work been done. Ultimately, therefore, it filed a complaint against the licensure of the Respondent with the Petitioner licensing agency. On April 9, 1990, the Respondent submitted a signed and sealed withdrawal of the design statement previously submitted to the Department. The Respondent contends that he never intended that the design statement originally submitted should constitute the final "as built" design for the water reclamation facility involved. Rather, he contends that it was intended by the Department, by himself, and by his client to be merely a preliminary or suggested design solely for purposes of negotiation concerning the permit denial and an attempt to work out a satisfactory arrangement with the Department in terms of the Department's conditions and requirements for design and construction, so that the proposed facility could be permitted. The Respondent contends that that was not the practice of engineering but, rather, submittal of a preliminary design statement which he claims the Department required of him. He thus submitted the design statement with the full understanding that it was not intended by him, or by the Department for that matter, to be a feasible final proposal or design and knowing that it was not up to standard or intended to be and knowing that it did not comply with certain applicable rules and regulations, he did not sign or seal it. Mr. Marshall, the expert witness put forward by the Petitioner, opined that the submission of substandard work, merely because another party has requested it for negotiating purposes, or for whatever reason, still is not acceptable practice for a licensed professional engineer. Merely because one is of the intent and opinion that submittal of the work will not be the final work product, by which the facility in question is to be built, is no excuse for not complying with proper standards of professional engineering practice. The Respondent's soil and ground water data was shown by Mr. Marshall to be inadequate because it did not provide for the necessary calculations which could indicate whether the performance of the system will actually meet the design criteria, given the geotechnical soil and hydrogeological conditions prevailing at the site, which were not adequately allowed for by their entry into proper calculations which should have been performed by the Respondent. The Respondent's professional history moreover does not reflect adequate geotechnical or hydrogeological experience and training necessary for a project such as the JNC at issue. It has been established by Mr. Marshall's testimony, which is adopted, that standards of practice were not followed because an appropriate subsurface exploration geotechnical investigation, laboratory soil testing, engineering analysis, and ground water mounding analysis was not performed. Even if the Respondent had adequate training in geotechnical and hydrogeological engineering, he promulgated a deficient engineering document in terms of this design, regardless of whether or not it was signed or sealed, because it constituted the practice of professional engineering and yet he failed to perform and to indicate on his design that the geotechnical and hydrogeological investigations required for such work had been performed. The document was based only on a review of available published information regarding surficial and sub-surficial soil conditions. No test borings were done in accordance with standard practice. The percolation testing performed by the Respondent was shown by Mr. Marshall to be inadequate under the circumstances of the project for which design was being considered. The proper geotechnical exploration, in keeping with standard engineering practice, would require the use of soil test borings to depths of 20 to 30 or perhaps 40 feet below ground surface. This would be necessary to properly characterize the aquifer and subsurface conditions and to evaluate the properties of the soil within that zone to determine what the actual hydraulic characteristics of the subsurface profiles would be. It would then be necessary to perform laboratory permeability testing on the soil samples from the various depths so as to properly characterize the aquifer performance or predicted aquifer performance for the entire depth zone to those significant depths. Just the top 18 or 20 inches of soil is not an adequate investigation. Further, the Respondent provided no documentation for his conclusions regarding established ground water movement, established surface water flow, and confirmed ground water table elevations. According to Mr. Marshall, it is safe to assume that surface water flow might be to the southeast given the site's topography and the fact that the ground slopes downward toward the southeast and generally toward the east, as well. However, the Respondent provided no documentation of any test borings or other site-specific geotechnical investigation work done to verify anything about the direction of ground water flow nor the ground water table elevation. Apparently the Respondent relied upon general information contained in a soil survey of Jefferson County but did not do site-specific investigatory work, in keeping with standard engineering practice, which would allow him to make those types of conclusions in a legitimate fashion. Mr. Marshall thus opined and established that the submission of the work by the Respondent was substandard work and that it is not justifiable engineering practice to submit such substandard engineering work, even if it is done at the request of another party with an understanding between the engineer and the other party and the client that this work is merely to be a preliminary design for purposes of negotiation between the regulator and the client. It is also no excuse for such substandard engineering practice that the Respondent submitted it without it being signed or sealed in his capacity as an engineer. The lack of the signing or sealing does not render it immune from having to comport with standard, acceptable engineering practice. Accordingly, it has been demonstrated that the Respondent was negligent in the practice of engineering in these particulars, with regard to his participation and design concerning the JNC project. Because the Respondent intended that this be a preliminary submittal, solely for the purposes of negotiation between himself, his client, and the regulatory agency and did not intend that it be a final design to be built in an attempt to comply with regulatory requirements, he has not been shown to have intentionally committed misconduct in the practice of engineering.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Board of Professional Engineers finding the Respondent guilty of violating Section 471.033(1)(g), Florida Statutes, to the extent that he is guilty of negligence in the practice of engineering and that he be issued a reprimand and that his licensure be placed in probationary status for a period of one year with reasonable terms to be decided by the Board, including the requirement of continuing professional education in the area of compliance with appropriate professional practice standards. DONE AND ENTERED this 4th day of March, 1994, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-7994 Petitioner's Proposed Findings of Fact 1-23. Accepted, to the extent they are consistent with the findings of fact of the Hearing Officer and otherwise as subordinate to the Hearing Officer's findings of fact. Respondent's Proposed Findings of Fact Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as not being entirely in accordance with the greater weight of the evidence; to some extent, irrelevant; and to some extent, as being legal conclusions and not proposed findings of fact. Rejected, as not being entirely in accordance with the greater weight of the evidence, as constituting an incorrect conclusion of law, and as subordinate to the Hearing Officer's findings of fact on this subject matter. 4-5. Rejected, as not in accordance with the greater weight of the evidence in its entirety, as constituting argument rather than a proposed finding of fact, and being an incorrect conclusion of law. 6. Rejected, as not in accordance with the greater weight of the evidence in its entirety, as constituting argument rather than a proposed finding of fact, as being an incorrect conclusion of law, and to some extent, irrelevant. COPIES FURNISHED: Anthony Cammarata, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Shrinivas K. Nayak 3512 Shirley Drive Tallahassee, Florida 32301 Jack McRay, Esq. General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angel Gonzalez, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0755
The Issue Is Petitioner entitled to enough points so as to be considered to have passed the October 31, 1997, Principles and Practice Chemical Engineering Examination?
Findings Of Fact On October 31, 1997, Petitioner took the Principles and Practice Chemical Engineering Examination. Petitioner received a score of 68 on the examination. A score of 70 is required to pass. A score of 70 is a converted raw score of 48. Petitioner's score of 68 is a converted raw score of 46. Therefore, Petitioner needs two raw-score points to achieve a passing score. Petitioner challenged the scoring of Questions 28, 62, 114, and 119. Petitioner's examination was returned to the National Council of Examiners for Engineering and Surveying (NCEES) to be re-scored. The re-score resulted in no additional points being added to Petitioner's score. No significant evidence was presented with regard to Questions 28 and 62, and Petitioner's expert agreed that they had been scored correctly with zero points awarded. Question 114 is an essay question. Petitioner received a raw score of 4 on this question, (40 percent of a possible 10 points). Question 119 is an essay question. Petitioner received a raw score of 2 on this question, (20 percent of a possible 10 points). Neither Petitioner's nor Respondent's expert was pleased with the scoring method established by NCEES, but both experts agreed that applicants are bound by the scoring plan established by whatever entity devised the test and scoring system, in this case NCEES. The NCEES scoring system is called the Solution and Scoring Plan. It contemplates that if an examinee's answer meets some criteria specified by NCEES for 4 points (but not all the criteria for 4 points) and also meets some criteria specified by NCEES for 2 points (but not all the criteria for 2 points), the examinee is to be awarded only 2 points, not 1 point or 3 points. Petitioner received a score of 4 on Question 114, a gas absorption problem. Petitioner got the correct answer but did not do much to justify the assumptions he made. He wrote his assumption in the body of his calculations instead of at the beginning, where he must have actually made the assumption in order to work the problem. According to Dr. Narayanan, Petitioner merely made an assumption of diluteness. Dr. Peters explained that Petitioner had assumed that the percent removal would be identical for the two cases contained in the problem. Petitioner had assumed that the percent removal of ammonia in condition one, which is 85 percent, is exactly the same as condition two. However, in Dr. Peters' view, there is no justification for that assumption. The Petitioner had calculated the new Yout based solely on the ratio of the two cases, without proving that the approach is valid. Therefore, although Dr. Narayanan would have scored Petitioner with 5 or 6 points, instead of 4 points on this problem, Dr. Peters' view was that achieving the correct answer from an incorrect procedure did not demonstrate more than 4 points on the established scoring system. Upon all the evidence, I find that Petitioner's answer to Question 114 meets the criteria set forth for a score of 4 under the NCEES Solution and Scoring Plan. Accordingly, Petitioner was entitled only to a score of 4 for that problem. Petitioner received a score of only 2 points on Question 119. Overall, Petitioner selected the proper equations and demonstrated the solution procedure correctly with the correct mass balances, but the scoring plan required that for a score of 4 on Question 119, examinees had to at least attempt to sketch the heat release curve, which Petitioner did not do. Petitioner admitted that he did not even attempt to draw the curve because he ran out of time. More specifically, Part A of Question 119 required Petitioner to determine the temperature at which the flash cooler must be operated and the composition, in mole percent, of the liquid stream removed. Petitioner did not demonstrate the calculation for the mole fractions in the liquid phase composition. Instead, he calculated the vapor phase composition. Although there is no way he could calculate the correct temperature, which he did, without somehow calculating the liquid phase compositions coming out of the process, Petitioner still did not fulfill all of the requirements of Part A of Question 119, as that question was posed on the examination. Petitioner's expert, Dr. Narayanan, partially agreed with the official scoring of Question 119. However, he stated that Petitioner's failure to report the liquid phase compositions, rather than the gas phase compositions, was merely an oversight. Petitioner calculated something correctly that was not required, but he did not calculate at all one element which was required. More specifically, Part B of Question 119 required Petitioner to sketch the heat release curve. Petitioner determined enough raw data for plotting the curve, but did not plot the curve due to the time factor. Completing all requirements of each problem posed was part of the testing procedure. Petitioner made no reasonable attempt to sketch the heat release curve, and therefore, Petitioner did not get any part of Part B of Question 119 correct. Upon the foregoing findings of fact, I accept as persuasive the testimony of Respondent's expert, Dr. Peters, that the scorer applied the NCEES scoring plan correctly, without a subjective component, and that Petitioner is not entitled to any more points on the October 31, 1997, Principles and Practice Chemical Engineering Examination than those which were originally awarded to him.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Professional Engineers enter a final order confirming Petitioner's score of 46 on the October 31, 1997, Principles and Practice Chemical Engineering Examination. DONE AND ENTERED this 31st day of March, 1999, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1999. COPIES FURNISHED: Ashok Raichoudhury 9917 Northwest 6th Court Plantation, Florida 33324 Natalie A. Lowe, Esquire Vice President for Legal Affairs Florida Engineers Management Corporation 1208 Hays Street Tallahassee, Florida 32301 Dennis Barton, Executive Director Florida Board of Professional Engineers 1208 Hays Street Tallahassee, Florida 32301 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Northwest Utilities of Broward County, Inc. and WPC Utilities are the two investor-owned utilities primarily involved in these proceedings. The stock of Northwest is wholly-owned by Ralph Bates and Marlene Bates, his wife. The stock of WPC is owned by Northwest. The Bateses were involved in land development plans in the early 1970's in the subject area of North Broward County lying west of the Florida Turnpike. No utility service was available at that time to serve that area; so the Bateses applied to the Commission in 1973 for water and sewer certificates. After appropriate proceedings territory lying west of the Turnpike, entirely in Broward County, was granted and certificated to Northwest. Within this territory, the Bateses had plans approved for development of a high-density planned unit development (PUD), (depicted on Exhibit 3, as numbers 1 and 2). At the instance of the Bateses', this land was annexed into the City of Coconut Creek. The advent of the 1973-1975 economic recession, coupled with a refusal to fund a loan commitment and the inability to obtain debt financing elsewhere, resulted in an inability to develop this PUD. The Bateses had, however, initiated steps to provide service to the development. In 1973 they purchased a one million gallon-per-day (mgd) sewage treatment plant at a cost of $192,879, of which there is now a current balance due of $75,000. No development occurred during 1974 or 1975, when the economic climate in the construction and real estate industry was depressed and the utility received no request for service. A fifteen-acre tract of land for the plant site had been acquired, but that land was relinquished when the need for service failed to materialize. In 1976 the Bateses bought the Coral Lakes Mobile Home Park (Parcel #4 on Exhibit 3). This park lies in Broward County and is surrounded by the City of Coconut Creek. In 1978 the Bateses sold the mobile home park, but the Northwest Corporation retained ownership of the water and sewer treatment plants and service to the area has since been provided by Northwest by means of these on-site "package' treatment plants. In 1977 the prospects for development improved and the Bateses entered into a phased purchase agreement for 175 acres of land (Parcel 3 on Exhibit 3). The intent was to develop this property for single family residences. Service was to be provided to the area through the water and sewer treatment plant located in the WPC utility territory and consequently the certificate transfer application in PSC Docket No. 770625-WE was filed. Northwest also constructed 2500 feet respectively of water and sewer transmission and collection lines in the territory west of the Turnpike (Exhibit 9) at a cost of $90,000. Development of this property was frustrated, however, due to the refusal of the City of Coconut Creek to grant favorable zoning for the property. In conjunction with the development of this parcel, Northwest received a request for service from WOK, Inc. ,a subsidiary of ATICO Mortgage Investors, for an 8.5 acre parcel which was part of the original Bates PUD. This developer, however, never executed the proffered development agreement with Northwest. Northwest demonstrated a willingness to contractually commit itself to provide service if needed and initiated acquisition and construction of a plant and other facilities to provide that service. The need for water and sewer service actually arose only in the area east of the Turnpike (Parcel "b" on Exhibit 3) and necessitated use of the existing WPC treatment plants to provide service to the area. York Development Company was the first entity actually requiring service in any area reflected on Exhibit 3. York acquired land in the City of Deerfield Beach (parcel #5 in area "b" on Exhibit 3) in December, 1977. York sought service from Deerfield Beach and prepared plans which were approved by the City. After determining that Northwest was certificated to serve the area, the City refused to provide service, and York entered into a developers agreement with Northwest on October 16, 1978. The agreement reserved water and sewer plant capacity for the 239 residential units of York's first phase of development. A second agreement entered into March 30, 1979 reserved capacity for an additional 270 units. Approximately 7 months prior to Northwest's execution of the first agreement with York, the proceedings in the certificate transfer case described above were concluded with the issuance of Order No. 8821 on March 27, 1978. The application filed had sought the transfer of the certificates from WPC Utilities to Northwest Utilities. After negotiations with the Commission (Exhibit 64), Northwest elected to maintain its application as one to transfer the certificates of WPC to Northwest rather than convert it to an application for a stock transfer. The only active developer in the pertinent territory besides York, FDV- Westport Properties (FDV), began development of a tract of 110 acres in the area identified as Parcel 10 in "b" on Exhibit 3 in October, 1979. A concomitant agreement was signed with Northwest on January 15, 1980. Development is proposed to be in phases, and the provisions of the agreement are similar to those of the York agreement submitted to the Public Service Commission in October, 1978. The first phase of development provides for 80 single family residential units. The only other customers of Northwest presently receiving service besides those customers in Coral Lakes Mobile Home Park and the York Development (Gates of Hillsborough) are customers in a small mobile home park known as El Rancho Seven, also identified as Parcel 7 in area "a" on Exhibit 3. Service to that development is provided from on-site package treatment plants, and the customers are individually metered. Rates, Charges and Guaranteed Revenues (Docket No. 800230-WS) The issuance of Order 8821 providing for a stock transfer rather than a transfer of WPC's certificate to Northwest, coupled with the inauguration of these developments, set the stage for the issuance of Show Cause Order No. 9324 in Commission Docket No. 800230-WS raising the issue of whether the rates, charges and guaranteed revenues charged to these developers should be those approved for Northwest Utilities or WPC Utilities. The essence of the issue has been stated above. The action by Northwest in Commission Docket No. 770625-WS, the transfer application, is significant in the context of this rates and charges problem. Northwest and WPC, as determined above, applied for a transfer of certificates and not for a transfer of stock from the latter to the former. It was the intent of the parties in that proceeding that Northwest was to be the only remaining operating entity serving the areas identified as "a" and "b" on Exhibit 3 lying both east and west of the Turnpike. Since the issuance of Order 8821, Northwest has been the only operating utility entity in those areas. Northwest has been the entity entering into all developer agreements regardless of the location of development, and has submitted these agreements to the Commission. The York agreement was submitted to the Commission by the utility in October, 1978, which revealed to the Commission that Northwest was operating east of the Turnpike in the original WPC territory. WPC has filed a final corporate return with the IRS, and its annual report for the year ending December 31,1978 filed with the Commission indicated that the stock and assets of WPC had been transferred to Northwest. The application and other documents in Docket No. 770625-WS bear the caption "Application for Transfer of Certificate" but the final Order No. 8821 bears the caption "Application for Transfer of the Outstanding Stock of WPC Utilities Services, Inc. to Northwest Utilities of Broward County, Inc., Broward County, Florida, Pursuant to Section 367.071, Florida Statutes". That order then authorizes the transfer of only the stock. Northwest operated under the belief that the certificates had been transferred as requested. Although a technical construction of the order could imply a denial of the application, such an interpretation would only naturally follow if the commission had complied with Section 120.59(2), Florida Statutes which states in pertinent part: If, in accordance with agency rules, a party submitted proposed findings of fact, or filed any written application or other requests in connection with the proceeding, the order shall include a ruling upon each proposed finding and a brief statement of the grounds for denying the application or request. Nowhere in that order is there any statement indicating an intention to deny the application as filed. Therefore, it must be inferred that the commission actually intended the certificates to be transferred to Northwest. At the time the transfer application was filed there were no customers in either the territory of Northwest or WPC. Therefore, there could be no adverse affect to any existing customer by granting the application as filed. Northwest has treated the action of the Commission as amounting to a merger of the two utility companies. If the Commission had acted in accordance with the application as filed as, inferentially, it must have intended, then no question would have arisen regarding Northwest's assessment of these charges. York Development executed a developer's agreement with Northwest on October 16, 1978 and is the first developer executing such an agreement and actually obtaining service from Northwest. Section 367.081(1), Florida Statutes states as follows: Rates and charges being charged and collected by utilities shall be changed only by approval of the commission. When Northwest signed the development agreement on October 16, 1978 no rates or charges were being charged or collected by either utility. Therefore, neither WPC nor Northwest required Commission approval to alter rates and charges prior to October 16, 1978. Thus, at that point in time, the rates and charges which York agreed to pay in that agreement were not improper. Indeed WPC could have increased its rates to the same level as Northwest and signed such an agreement with York and York would be in the same posture regarding the propriety of the rates as it presently is. Therefore, the rates contracted for with York are proper. Thus, all the parties, including the Commission, originally intended that the two utility operations should merge or that Northwest should remain the only utility entity providing service to the subject territories. The language in Order 8821 transferring stock only was in error. The only questions then remaining regarding this subject matter involve the charging of guaranteed revenues to York and FDV. The level of guaranteed revenue to be charged was determined by adding together Northwest's minimum charge for water and sewer, which coincidentally, is the same method of computing then employed by South Palm Beach Utilities (SPB), and is a method approved by the Commission in past decisions when confronted with a dearth of data required by Rule 25-10.121(12), Florida Administrative Code. The level of guaranteed revenues is thus appropriate. Northwest was required to charge guaranteed revenues in order to recover costs of operation so as to make the agreement to provide service to York and FDV financially feasible. Both those developers agreed in writing to pay guaranteed revenues as defined in the above rule and, inasmuch as they are a device to place the risk of development on a developer instead of on a utility, the agreements between Northwest and those developers accomplished that end. See Rule 25-10.138, Florida Administrative Code. There is no rule extant that requires a utility to have an approved service availability policy as a condition precedent to charging guaranteed revenues. In fact, of the more than 500 utilities regulated by the Public Service Commission, less than ten percent have approved service availability policies. And, indeed, Rule 25-10.138 contemplates the filing of "special contracts" with the Commission. That portion of the above developers agreements dealing with guaranteed revenues renders those agreements to be "special contracts" within the meaning of the Rule, and since the Rule provides that the Commission shall approve such contracts, the fact of such approval has become an issue in this proceeding. The Commission has alleged that the York contract was never-approved since no document approving it was ever transmitted to the utility. Nor was any timely disapproval ever served on the utility. The Commission never responded to the filing of the contract between October, 1978 and the issuance of Show Cause Order 9324 in April, 1980. In 1979 York inquired regarding the filed agreement and received no response. Thus, under the facts of this case, the Commission's silent acquiescence must be found to constitute tacit approval of the contract. Northwest should not be penalized for failure of the Commission to act. It is not unreasonable for Northwest and York, after so much passage of time, to have assumed that the contracts were appropriate. Indeed, York and Northwest, as well as FDV, entered further similar agreements in reliance on the lack of objection by the Commission. There is then no justification for cancellation of Northwest's certificates to serve the subject territory (area "b" on Exhibit B). Further, the evidence submitted by the City of Deerfield Beach is deemed irrelevant to any matters under consideration in this docket, since that City is not authorized to serve in Northwest's certificated territory. Even assuming arguendo that Northwest's certificates (or WPC's) were cancelled, serious legal impediments must be overcome before Deerfield Beach could serve the York development. For instance, all the lines through which service would be provided are owned by Northwest Utilities, and the public interest would certainly not be served by duplication of those lines or by duplicate payments of contributions in aid of construction to Deerfield Beach, or by the rendering useless of a new water treatment plant which is presently approximately 50 percent completed and represents a substantial investment. The Certificate Application (Docket #780902-WF) Section 367.041(1), Florida Statutes, provides as follows: Application.-- Each applicant for certificate shall: Provide information required by the commission which may include a detailed inquiry into the ability of the applicant to provide service, the territory and facilities involved, and the existence or non-existence of service from other sources within geographical proximity to the territory applied for; Section 367.051(3), Florida Statutes, provides in pertinent part as follows: (3) In either event, the commission may grant a certificate, in whole or in part or with modifications in the public interest, or, after notice and hearing, deny a certificate. Resolution of the certification issue requires consideration of the capability of Northwest to provide the proposed service, a consideration of the quality of the service to be provided and the feasibility of the proposed extension of service from a financial, economic and technical point of view. Markborough Properties has a substantial need for water and sewer service to be provided its development which will ultimately consist of approximately 5,000 homes as previously described. Northwest presently has a sewage treatment plant with a capacity of 260,000 gallons per day, although the present capacity is limited to 100,000 gallons per day (GPD) until the percolation ponds are approved for additional flow. The 260,000 GPD plant will be utilized to full capacity in the immediate future. Northwest also has facilities to provide water to the York and Coquina Lake Developments which is chlorinated, but not otherwise treated. The Broward County Health Department has mandated fully treated water for these developments in the very near future, and water supplied residents of the York Development at Gates of Hillsborough should be likewise improved even though all water produced presently meets state regulatory standards. There is no question that if Boca del Mar II is to be served by the applicant, additional facilities for water and sewage treatment must be developed. In order to provide service to Boca Del Mar II as well as to existing or potential users in the area east of the Florida Turnpike (area "b" on Exhibit 3), a 1.5 MGD sewage treatment plant will be added to the existing 260,000 GPD sewage plant with the result that Northwest will be capable of treating sewage in the amount of at least 1.76 million gallons per day. Thereupon, the plant would have the capability to treat all sewage produced by Boca Del Mar II as well as the other developments named. The sewage from Boca Del Mar II would be collected in that development then pumped to the treatment facility located at the present plant site south of the Hillsborough Canal. The sewage would be given secondary treatment there, with the effluent stored in percolation ponds on the treatment plant site until the treated effluent is pumped to a golf course within the Boca Del Mar II development for disposal by spray irrigation. All sewage generated in the developments served by Northwest in Broward County would eventually be pumped south to the North Broward County regional sewage treatment facility. In order to implement this concept Northwest has entered into a "large user's agreement" with the Broward County Utilities Department. The sewage generated in Broward County would be treated initially in the sewage treatment plant constructed on Northwest's site. When that sewage treatment plant is used to 50 percent of its capacity, Northwest would be contractually obligated with Markborough Properties to start procedures that would permit the Broward County generated sewage to be treated elsewhere (the North Broward Regional Sewage Treatment Facility), leaving the Northwest Sewage treatment plant dedicated for the use of Markborough alone. Northwest has entered into a contract with Davco, Inc. to purchase and construct 1.5 MGD sewage treatment plant, conditioned upon favorable action by the Commission on this certificate application. The plant can be constructed and in full operation within nine months. Northwest has prepared detailed engineering plans for a two MGD water treatment facility to provide fully-treated water to Boca Del Mar II as well as the existing developments of York and Coquina Lakes. This facility has been permitted for construction by the Department of Environmental Regulation, and a permit has been obtained from the South Florida Water Management District (SFWMD) authorizing withdrawal of 315 million gallons of ground water per year. SFWMD does not object to Northwest's crossing the Hillsborough Canal with the necessary water main. Construction is approximately 50 percent complete on the water treatment plant, and the plant can be operational in approximately four months. The water treatment concept espoused by Northwest is feasible and practical. (The legislature has mandated removal of any consideration of political or property boundaries in the allocation and use of water in the state. See Section 373.223, Florida Statutes.) Similarly, with the sewage treatment concept proposed by the utility, there is no statutory impediment to crossing political boundaries in the process of sewage collection and treatment. Both the Broward County Environmental Quality Control Board and the Department of Environmental Regulation are agreeable to the proposed concept of sewage treatment and are willing to resolve any problems occasioned by the crossing of the county boundary with collection lines in favor of the utility's proposal. Northwest has developed detailed cost analyses regarding construction of the water and sewage treatment facilities to serve Boca Del Mar II. Northwest has also developed engineering cost estimates to provide transmission facilities to enable connection to the Broward County Regional Sewage Treatment Facility. The costs of construction were developed in accordance with sound engineering principles and current market prices for materials, equipment and labor and are reasonable. Several factors contribute to the reasonableness of the construction costs. Ralph Bates, a contractor experienced in this type construction, will perform a substantial part of the plant construction and can accomplish this work for substantially less than a third party contractor. Additionally, Northwest has obtained a loan commitment at an extremely favorable interest rate considering the cost of money in today's market. When these facilities are constructed Northwest will be capable of providing water and sewage collection and treatment service to Boca Del Mar II and to the territory east the Florida Turnpike (area "b" of Exhibit 3). Northwest will be able to provide good quality service with the facilities to be constructed, and the proposed financing arrangement discussed hereinafter will render the extent and type of service proposed by Northwest financially and economically feasible. The remaining issue to be addressed in this certificate proceeding, having determined the capability of the applicant, concerns the question of the availability of adequate service from other sources. Section 367.051(3), Florida Statutes, states in pertinent part: . . .The commission shall not grant a certificate for a proposed system, or for the extension of an existing system, which will be in competition with, or duplication of, any other system or portion of a system, unless it shall first determine that such other system or portion thereof is inadequate to meet the reasonable needs of the public or that the person operating the system is unable or refuses or neglects, after hearing on reasonable notice, to provide reasonably adequate service. Section 367.041(1) states in pertinent part as follows: . . . Provide information required by the commission, which may include a detailed inquiry into the ability of the applicant to provide service, the territory and facilities involved, and the existence or non-existence of service from other sources within geographical proximity to the territory applied for . . . The potential sources of service within a reasonable, feasible geographical proximity to Boca Del Mar II are the City of Boca Raton and South Palm Beach Utilities (SPB). The City of Boca Raton raised no objection to a grant of the certificate and authority sought by Northwest. The city previously refused to serve the Boca Del Mar area, and if Markborough were to attempt to obtain service from the city inordinate delays would result. Markborough is experiencing a cost of capital of $100,000 per week in interest and other charges for each week that its development is delayed. The consistent ability of the City of Boca Raton to provide adequate water service to the development has not been adequately demonstrated. The city has a sporadic water shortage problem and is in the process of constructing new water treatment facilities that may partially alleviate the problem, but that relief is 18 months away. The city is contemplating embarking on what is known as a "201 plan" to construct and operate a regional sewage treatment facility pursuant to the Federal Water Pollution Control Act as amended in 1972. 33 USCS Section 1281. This plan is only in its initial stages, and it will be several years before the study and any resulting construction is completed and sewage treated. Markborough has no desire to have service provided by South Palm Beach Utilities. It is also questionable whether SPB is seriously interested in providing service. No application for a certificate for this territory has ever been filed by SPB, and the protest to the Northwest application has been withdrawn by SPB. If service were provided by SPB to Boca Del Mar II, it would disrupt the provision of service to York and FDV from an operational and financial standpoint. Such an eventuality would not serve the public interest and since the same application process undertaken by Northwest would also be a prerequisite to the provision of service by SPB, there would be an unacceptable delay attendant to any provision of service by SPB, even assuming no engineering or financial impediments arose. Further, a minimum of seven months would be necessary for completion of necessary expansion to provide service even if it already had authority to do so. Nearly all of SPB's present water and sewage plant capacity is already committed. Thus, the present and future customers would be most clearly satisfied and served by a grant of a certificate to Northwest. That entity is the most capable from an an engineering and operational standpoint of constructing and providing required adequate service in the shortest time and, as will be seen, will have adequate financial resources available to underwrite this effort. Application for Approval of Debt Financing (Docket #800299-WS) In order to have the financial resources available to expand facilities to provide service to Boca Del Mar II and to upgrade quality of service to other customers, Northwest must obtain capital from outside sources. These funds are most readily available from Markborough Properties in the form of a loan. Markborough is keenly interested in a resolution of these and other delays to Boca del Mar II's development, particularly due to the fact that it is experiencing interest and opportunity costs of $100,000 per week for every week of delay in implementing its development plans. Consequently, Markborough has signed a loan commitment to Northwest for an aggregate principal sum of $2,610,000. A loan agreement to accompany this commitment has been proposed which contains the requirements of the lender and the terms of the arrangement. The loan up to the above aggregate amount will be evidenced by a promissory note with interest at a less-than-market rate of 10 percent per annum. The agreement provides for various advances under the terms of the note for specific items of construction of the water and sewage facilities. Interest would be paid monthly upon the outstanding principal balance of the note commencing one month after its execution, and interest only will be paid for two years or until the note is fully advanced. At that point, called the advance date, the entire principal and interest will be set up on a 30-year amortization schedule, with level principal and interest payments, with those payments to be made over a period of five years. After five years, the existing balance on the note would be fully due and payable as a "balloon" payment. There are provisions for pre-payment of principal and interest out of various developer contributions-in-aid-of construction (CIAC) that would be attributed to the interest and then principal outstanding on the note. The note would be secured in a customary manner. There would be a first mortgage lien on the real property, which is basically the water and sewer plant site and improvements. Security interests in the present and future personal property, equipment and inventory on the two plant sites would also be given the lender. The entire agreement would be personally guaranteed by the stockholders, Ralph and Marlene Bates, and in conjunction with that they would also pledge all the capital stock which they own in Northwest, as well as the stock which that company owns in WPC. There further is an assignment of present and future developer contributions-in-aid-of construction that would be attributed to the reduction of principal and interest by a stated formula. All CIAC payments would be directed to Markborough to be applied as called for by Paragraph 9.2 of the loan agreement. The allocation of those payments would be as follows: 75 percent of the CIAC from developers within the Boca Del Mar II development would be retained by Markborough, specifically to reduce the principal and interest on the loan. The remaining 25 percent of those CIAC payments would be disbursed to the borrower, Northwest. Twenty-five percent of the CIAC from developers not within the Boca del Mar II area would be similarly retained and used for reduction of the loan. Fifty percent would be retained by Markborough in an interest-bearing escrow account for use by Northwest to facilitate either the expansion of its plant facilities, to assist it in rendering service to other developers or to make the necessary capital payments to enter into a bulk sewage treatment contract with Broward County. The remaining 25 percent of non Boca Del Mar II CIAC payments would go to Northwest. Because of the low interest rate, Markborough and Northwest have agreed to what is commonly referred to in the construction and financing industry as an "equity kicker". This equity incentive or right of the lender is an amount equal to 40 percent of such portion of the net proceeds of the sale or disposition of assets or stock, (after debts securing such assets or stock and sales expenses, but prior to income taxes) as the number of units under service by Northwest (and number of units to be built upon land then under contract to be sold to a subdeveloper) in Boca del Mar II bears to the total number of units under service by Northwest, including units under contract, but not yet in service. This provision is customary in such financing arrangements and is allowed by Section 687.03(4), Florida Statutes. This "equity kicker" in effect provides an additional incentive to the lender to offset the below-market interest rate, and it survives the satisfaction of the mortgage debt and loan if there is ever a sale of all or a portion of the stock or assets of the utility. This "equity kicker" provision would inure to the benefit of customers of the utility by providing lower utility rates through the effect of the lower interest cost provision. Northwest would provide this "additional interest" out of any profits from a sale, and therefore only the principals of Northwest would ever feel any impact from this arrangement. The safeguards to the lender are numerous, but they are safeguards similar to conditions normally imposed for construction loans of this type and magnitude. The principal disadvantage of this loan proposal and agreement is that Markborough would have great control over virtually all the operations of the utility. It would have representation on its board of directors, would participate in all major decisions and possibly even in the day-to-day operations of the utility, which control could potentially extend to other developments and not just Boca Del Mar II. In fact, the agreement ultimately calls for the utility's capacity to be largely dedicated to the sole use of Markborough. The major advantage of the loan agreement is that the utility would be able to obtain financing at a low rate of interest in order to construct the facilities necessary to serve Boca Del Mar II. Through this construction, the utility will be able to serve a much larger customer base and will be able to obtain a more viable financial position. York Development and other creditors of the utility would be paid off, capital available for future use would be accumulated under the terms of this agreement, and finally management expertise would be available from Markborough which could greatly enhance the effectiveness of the utility's operation. In order to hasten construction of improved water treatment facilities, York has made various short-term loans to Northwest. Both York and Northwest contemplate that the indebtedness would be discharged upon securing of long-term financing. Under the terms of the Markborough loan, Northwest would draw down a substantial portion of the loan at closing. The monies obtained on the first "draw" would satisfy substantially all the current indebtedness of Northwest. All existing mortgages, some of which are in default, would be satisfied, and Markborough would become the first lien holder. The Markborough loan is thus designed to achieve the objectives of providing the utility with funds to construct a plant to serve Boca Del Mar II; to help Northwest become a financially viable utility able to provide quality service to customers; to enable Northwest to repay current creditors, including York Development to whom it owes some $185,000; to accumulate enough CIAC to aid in retiring the debt; and to provide Markborough with an equity interest and sufficient control over the operations of the utility to ensure continuous quality service to its development. The Markborough loan, then, is part of a comprehensive plan by this utility to ensure financial viability and continuous quality water and sewer service to York and other customers in an expanding territory in the future. The Markborough loan proposal achieves all the above objectives and represents the only viable means offered to achieve them. The remaining issue concerning this financing arrangement is whether the utility has the ability to repay the debt. If only the known developments in the area east of the Florida Turnpike are considered, with only the minimum rates chargeable to them used to forecast operating revenues, Northwest will have the capability of repaying the money borrowed from Markborough. However, there are two occasions in the projections of available cash flow to service debt (to 1985) when a cash deficit might occur. At the end of 1980 there is a relatively immaterial predicted deficit. There will be a deficit at the end of 1983, when it will be necessary to construct the transmission line to the Broward County sewage treatment facility. That deficit at the end of 1983 has been provided for, however, in that York Development has agreed to advance money to cover that deficit if it should prove necessary. In effect, the worst conceivable situation that could occur should Northwest be unable to service the debt would be foreclosure and ultimate ownership by a financially sound development company, Markborough, which has a high degree of management expertise as well as a keen interest in having quality water and sewer service provided its development in order to successfully market it. Thus, should Markborough ever become the operator of the utility, there is no conceivable way that such an event would not inure to the benefit of all customers served. Show Cause Order No. 9305 (Docket #800181-WS) Certificates 170-W and 121-S were granted to Northwest after application made in 1973. The area encompassed by these certificates is identified as "a" on Exhibit 3. The certificates were ultimately granted to the utility in April, 1974, and the above-referenced Show Cause Order contains allegations proposing that the Commission cancel these certificates. The allegations in the Show Cause Order are essentially that the certificates were issued on the premise that service was needed in this service area, but that no service has been provided, and therefore the premises upon which the certificates were issued no longer exist and they should be cancelled. The certificates were issued on the premise that service was needed in the territory, and service was initially needed at that time for the high density Bates PUD discussed above. The need for service ultimately failed to materialize because of economic conditions, but since economic conditions change, the need for service can and has arisen once again. Thus, consideration of this issue must take into consideration current developments and economic realities, including the steps recently taken by Northwest to expand its service. Northwest has built or acquired plant facilities for the purpose of providing service in this territory. It purchased in 1973 a one-MGD-sewage- treatment plant, which is now stored on the Bates's, property and available for use if an appropriate development should require it in this territory. Further, to provide service where needed, Northwest has invested in the on-site package plants to serve Carol Lakes Mobile Home Park. A need for service arose in the park in 1976, and Northwest provided it. Another apparent need arose in 1977 in the area identified as Parcel 3 on Exhibit 3, and Northwest took steps to provide that service. Mains were installed at a cost of $9,000, and the acquisition of the WPC plants was undertaken at a cost of $300.,000. The actual need for service did not materialize, but there is no question that Northwest stood ready and held itself out to provide service upon request. Its investment of substantial amounts of money, and its demonstrated willingness to provide service when requested, indicates that Northwest has taken the obligation imposed by those certificates seriously, and any actual cancellation would, in effect, deprive Northwest of effective use of a substantial investment in property without just compensation. Given that the rate-making criteria in Section 367.081, Florida Statutes, provides that a return through rates can only be allowed a utility on property or investment which is "used and useful" in the public service, the Commission has uniformly insisted, for rate-making purposes, that investments be prudent and in accordance with this statutory standard. Therefore, Northwest should not be required to run the risk imposed by this Show Cause Order of losing its territory merely because it has not built a plant and laid down mains and lines throughout the territory in question, since no service in that territory has heretofore been needed. There is no requirement in the above- cited statute nor in decisional law which would provide that a utility should place lines and/or plants throughout a territory where no service is yet required and for which no request has been received; and indeed the Commission has uniformly discouraged and penalized that practice in numerous past decisions. The only possible alternative source of service to this territory is the City of Coconut Creek. The city has no sewage or water treatment facilities and would serve the area by having sewage treated at the Broward County facility which Northwest would probably use in the future. There is no showing that the public would gain any cost advantage by obtaining service from the City of Coconut Creek as opposed to Northwest. The city's argument that it should serve the territory since it lies within its city limits is unpersuasive. Many cities or portions of cities are served by privately-owned facilities in this state. Further, only certain portions of Northwest's territory lie within the city limits of Coconut Creek. Those are the areas where the highest density development is probable, such that if it were given the right to serve those areas, only Coconut Creek would obtain the bulk of the revenue, leaving Northwest to serve low density areas with only marginal practicality due to the low resultant revenues. The provision of service to the area outside the city limits of Coconut Creek is only feasible if the utility serving the area also retains the right to serve those within the city limits. An additional problem would occur if this certificated territory were cancelled. Coral Lakes Mobile Home Park lies surrounded by the City of Coconut Creek, so if the area within the city limits of Coconut Creek was deleted from the Northwest certificates, the mobile home park would become isolated, rendering it extremely difficult to upgrade and maintain quality service to the park by Northwest, which would remain obligated to serve it. Thus, deletion of the territory within the city limits of Coconut Creek from the certificates of Northwest would render service to those areas and contiguous areas operationally and financially unfeasible. Northwest has not failed to provide service to any person reasonably entitled thereto or requesting it. It has thus far offered service to every person or entity making a request.
Recommendation Having considered the substantial, competent evidence in the record, the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application of Northwest Utilities of Broward County, Inc. to extend water and sewer service to the territory known as Boca Del Mar II, be granted. It is further, RECOMMENDED that the application of Northwest Utilities of Broward County, Inc. for authority to borrow the principal amount of $2,610,000 from Markborough Properties Ltd. be granted. It is further, RECOMMENDED that Public Service Commission Show Cause Orders Nos. 9324 and 9305 be dismissed. It is further RECOMMENDED that the Motion for a Corrective Order addressed to Order No. 8821 in Public Service Commission Docket No 770625-WS filed by Northwest Utilities of Broward County, Inc. be granted. DONE and ENTERED this 21st day of August, 1980, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: David B. Erwin, Esquire Johnston and Erwin 1030 E. Lafayette Street Suite 112 Suite 601 Tallahassee, Florida 32301 Marta Crowley, Esquire James O. Collier, Class B. Practitioner Public Service Commission 101 E. Gaines Street Tallahassee, Florida 32301 Peter A. Knocke, Esquire Carlton, Fields, Ward, Emmanuel, Smith and Cutler, P.A. Post Office Drawer 190 Tallahassee, Florida 32302 William E. Sundstrom, Esquire 1020 E. Lafayette St. Suite 103 Tallahassee, Florida 32301 Betty Lynn Lee, Esquire Prominski and Lee 800 E. Broward Boulevard Ft. Lauderdale, Florida 33301 Andrew S. Maurodis, Esquire 4540 N. Federal Highway Fort Lauderdale, Florida 33308 Burton Harrison, Esquire Bretan and Marks 7200 Bird Road Miami, Florida 33130 Milton A. Galbraith, Jr. City Attorney 201 W. Palmetto Park Road Boca Raton, Florida 33432
