The Issue The issue in this case is whether the challenged portions of Rule 14-22.012, Florida Administrative Code, constitute an invalid exercise of delegated legislative authority as defined by Section 120.52(8), Florida Statutes.
Findings Of Fact The Parties The Respondent The Department is the state agency charged with the responsibility of building and maintaining the state’s transportation system. Each year the Department lets out hundreds of road and bridge construction projects totaling over one billion dollars. The projects range from sidewalk improvements to major bridge construction. Accordingly, there is a wide range of expertise and qualifications necessary for the different kinds of projects let by the Department in Florida. Section 337.14(1), Florida Statutes, requires any person desiring to bid on any Department construction contract in excess of $250,000 to first be certified by the Department as qualified to perform the work to be let. Pursuant to Section 337.164, Florida Statutes, the Department qualifies contractors to preserve the integrity of the public contracting process, to ensure an open and competitive environment for the benefit of the taxpayers, and to ensure a quality project in terms of public works. Pursuant to Section 337.14, Florida Statutes, persons seeking to bid on contracts in excess of $250,000 must first file an application for a Certificate of Qualification with the Department. The statute specifically authorizes the Department to enact rules addressing the qualification of persons to bid on contracts in excess of $250,000, including requirements with respect to competency, responsibility, equipment, past record, experience, financial resources, and organizational personnel of the applicant. Gregory Xanders is the State Construction Engineer. His duties include setting policy and reviewing contractor responsibility and qualifications under Chapter 337, Florida Statutes, and Chapter 14-22, Florida Administrative Code. In conjunction with reviewing a contractor’s qualifications, the State Construction Engineer’s Office receives input from other personnel, including contract managers in the field, the Department General Counsel’s Office, the Department Inspector General’s Office, and other cities and counties who may work with the contractor. The State Construction Engineer’s Office also reviews any intended decision to deny, suspend, or revoke a contractor’s Certificate of Qualification with the Assistant Secretary of the Department. When the State Construction Engineer’s Office makes a preliminary determination that a contractor’s Certificate of Qualification should be suspended, revoked, or denied, the contractor is notified and informed of its rights to an administrative hearing to contest the intended decision under Section 120.569, Florida Statutes. The Petitioner MBI is a company which engages in road building and asphalt paving. Since the early 1980s MBI has been qualified to bid on and awarded several Department projects. Approximately 80 percent of MBI's workload involves Department projects. Pursuant to Department rules, MBI annually submits an application to renew or obtain an updated Certificate of Qualification in order to continue bidding and performing Department projects. In 1997, MBI was denied qualification to bid on Department projects for approximately ten months. However, MBI was subsequently qualified by the Department during calendar year 1999. On or about March 31, 2000, MBI filed an Application for Qualification with the Department. By letter dated May 18, 2000, the Department gave MBI notice of its intent to deny MBI’s Application for Qualification, and stated that any subsequent application would not be considered for a period of two years. The Department’s letter advised MBI that the denial of the application constituted "a determination of non-responsibility to bid on any other construction or maintenance contract" for the same period. Specifically, the letter provided: Please be advised that pursuant to Chapter 337, Florida Statutes, and Rule Chapter 14- 22, Florida Administrative Code, it is the intent of the Department of Transportation (hereinafter Department) to deny Mitchell Brothers, Inc.’s (hereinafter Mitchell Brothers) Application for Qualification dated March 31, 2000. This denial shall preclude consideration of any subsequently submitted Application for Qualification for a period of two (2) years. Additionally, this denial shall constitute a determination of non- responsibility to bid on any other construction or maintenance contract and shall prohibit Mitchell Brothers from acting as a material supplier, contractor, or consultant on any Department contract during the period Mitchell Brothers is not qualified by the Department. The Department’s Notice of Intent denied MBI’s Application based upon a determination that MBI had demonstrated "a pattern of exorbitant and false, deceptive or fraudulent statements, certifications, or materials in claims for payment," and "a lack of management expertise and continuity." By Petition for Formal Hearing dated May 30, 2000, MBI challenged the Department’s Notice of Intent to Deny MBI’s Application for Qualification. MBI’s Petition for Formal Hearing was referred to the Division of Administrative Hearings and assigned DOAH Case No. 00-2431. On September 18, 2000, the Department served on MBI a Modified Notice of Intent to Deny MBI’s application. The Modified Notice gave additional grounds for the Department’s decision to deny MBI’s Application for Qualification. Among the additional grounds for denying MBI’s Application were the following: MBI submitted false, deceptive, fraudulent, erroneous or unreasonable statements, certifications, or materials in its claims for payment to the Department, the City of Tallahassee, the Leon County School Board, and other owners; MBI submitted claims or statements for services not performed or expenses not incurred; MBI failed to avoid, diminish or otherwise mitigate the effects of construction delays; and MBI failed to reasonably cooperate with the Department’s efforts to investigate the accuracy of MBI’s delay claims and statements. On October 13, 2000, MBI filed it’s Petition Seeking Administrative Determination that Rule 14-22.012, Florida Administrative Code, is an invalid exercise of delegated legislative authority (DOAH Case No. 00-4234RX). Specifically, in paragraph 11 of its Petition, MBI alleges that the Rule enlarges, modifies, or contravenes specific provisions of the law implemented, and that the Rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency. MBI later alleged that the Department had also exceeded its grant of rulemaking authority. A three-week final hearing was scheduled to commence in DOAH Case No. 00-2431 on October 26, 2000. Shortly prior to hearing, Petitioner filed a Motion to consolidate DOAH Case Nos. 99-2431 and 00-4234RX. The Department opposed the motion based on their counsel's inability to be adequately prepared for the 00-4234RX rule challenge proceeding. In lieu, the parties agreed to temporarily break from the 00-2431 hearing during the second week and commence the rule challenge. However, on the morning of October 26, 2000, MBI filed a Notice of its Withdrawal of its Petition for Formal Hearing in DOAH Case No. 00-2431. Consequently, DOAH Case No. 00-4234RX was scheduled for hearing on November 14, 2000. Based on MBI’s Notice of Withdrawal of its Petition, an Order Closing File was entered in DOAH Case No. 00-2431 on November 1, 2000. On November 2, 2000, the Department entered a Clerk’s Order of Dismissal of MBI’s Petition challenging the denial of its Application for Qualification. "Good Cause" Defined in Section 337.16(2), Florida Statutes Section 337.16(2), Florida Statutes, provides: For reasons other than delinquency in progress, the department, for good cause, may determine any contractor not having a certificate of qualification nonresponsible for a specified period of time or may deny, suspend, or revoke any certificate of qualification. Good cause includes, but is not limited to, circumstances in which a contractor or the contractor’s official representative: Makes or submits to the department false, deceptive, or fraudulent statements or materials in any bid proposal to the department, any application for a certificate of qualification, any certification of payment pursuant to s. 337.11(10), or any administrative or judicial proceeding; Becomes insolvent or is the subject of a bankruptcy petition; Fails to comply with contract requirements, in terms of payment or performance record, or to timely furnish contract documents as required by the contract or by any state or federal statute or regulation; Wrongfully employs or otherwise provides compensation to any employee or officer of the department, or willfully offers an employee or officer of the department any pecuniary or other benefit with the intent to influence the employee or officer’s official action or judgment; Is an affiliate of a contractor who has been determined nonresponsible or whose certificate of qualification has been suspended or revoked and the affiliate is dependent upon such contractor for personnel, equipment, bonding capacity, or finances; Fails to register, pursuant to chapter 320, motor vehicles that he or she operates in this state. Section 337.16(2), Florida Statutes, authorizes the Department to deny, suspend, or revoke an Application for Qualification based upon a determination of "good cause." "Good cause" is defined by six examples specified in Section 337.16(2), Florida Statutes, but the statute further provides that "good cause includes, but is not limited to" the six circumstances specified in the statute. "Good Cause" Defined in the Rule 14-22.012, Florida Administrative Code Rule 14-22.012, Florida Administrative Code, is entitled: "Suspension, Revocation, or Denial of Qualification." Subsection (1) of this Rule provides in pertinent part: (1) The Department will, for good cause, as that term is defined in Section 337.16(2), Florida Statutes, suspend, revoke, or deny any contractor’s qualification to bid. A suspension, revocation, or denial for good cause pursuant to this rule shall prohibit the contractor from bidding on any Department construction contract for which prequalification is required by Section 337.14, Florida Statutes, and shall constitute a determination of non- responsibility to bid on any other construction or maintenance contract and from acting as a material supplier, subcontractor, or consultant on any Department contract or project during the period of suspension, revocation, or denial. As provided in Section 337.16(2), Florida Statutes, such good cause shall include, but shall not be limited to, the provisions of paragraphs (a) through (e) below. When a specific period of revocation, denial, or suspension is not specified by this rule, the period shall be based on the criteria of Rule 14-22.0141(4), F.A.C., as well as Department contractor certification activities. (a) The contractor’s Certificate of Qualification shall be denied or revoked for at least one year when it is determined by the Department that any of the following has occurred: One of the circumstances specified under Section 337.16(2)(a), (b) or (d), Florida Statutes, has occurred. Affiliated contractors submitted more than one proposal for the same work. In this event the Certificate of Qualification of all of the affiliated bidders will be revoked or denied. All bids of affiliated bidders will be rejected. The contractor made or submitted to the Department false, deceptive, or fraudulent statements, certifications, or materials in any claim for payment or any information required by any Department contract. The contractor defaulted on any Department contract or the contract surety took over any Department contract from the contractor. Rule 14-22.012(1), Florida Administrative Code, authorizes the Department to deny, suspend, or revoke a contractor’s qualification to bid based on a determination of "good cause" as that term is defined in Section 337.16(2), Florida Statutes. The term is defined by examples contained in Section 337.16(2), Florida Statutes, and in the Rule, but it is not exhaustive. In addition to the list of examples of "good cause" specified in Section 337.16(2), Florida Statutes, and Rule 14- 22.012(1), Florida Administrative Code, the Department consistently considers other criteria contained in Chapter 337, Florida Statutes, which relate to the qualifications of a contractor. Section 337.14, Florida Statutes, requires the Department to consider a contractor’s equipment, past record, experience, financial resources and organizational personnel. Other factors considered are contained in Rule 14-22.003, Florida Administrative Code, which addresses the rating of the applicant, work performance record, quality of work performed, history of payment, timeliness of completing projects, cooperative attitude, contract litigation, claims, defaults, integrity, and responsibility. Both Chapter 337, Florida Statutes, and Chapter 14-22, Florida Administrative Code, provide the industry with sufficient guidance as to the criteria for "good cause." Responsibility A contractor bidding on projects of less than $250,000 is presumed to be responsible unless one of the circumstances specified in Rule 14-22.0141, Florida Administrative Code, occurs, in which case the contractor may be deemed "non- responsible." In addition to being "qualified," a contractor seeking to bid on projects over $250,000 must also be deemed to be "responsible." By statute, a contractor must be "responsible" as a prerequisite to being "qualified." Section 337.14(3), Florida Statutes, provides: (3) Upon the receipt of an application for certification, the department shall examine it, verify its statements when necessary, and determine whether the applicant is competent, is responsible, and possesses the necessary financial resources to perform the desired work. The Department must consider the responsibility of the contractor during the review of its Application for Qualification. If a contractor’s qualification has been denied, suspended, or revoked for "good cause," then the contractor is deemed to be non-responsible and not allowed to bid on any project. Under Section 337.16(2), Florida Statutes, the Department may determine the time period in which a contractor is deemed to be non-responsible. Period of Disqualification As to the period of disqualification, Section 337.16(2), Florida Statutes, and Rule 14-22.012, Florida Administrative Code, provide a framework of guidelines and, in some instances, detailed timeframes relating to specific circumstances. For example, Section 337.165(2)(b)1, Florida Statutes, specifically requires the Department to deny or revoke a contractor's certification for a period of 36 months when the Department determines that the contractor has been convicted of a contract crime. This statute provides a frame of reference for the Department in establishing the period of disqualification. Within the framework provided by Chapter 337, Florida Statutes, and Chapter 14-22, Florida Administrative Code, the Department considers a period of disqualification ranging from 0 to 36 months. Rule 14-22.012, Florida Administrative Code, states that when a Certificate of Qualification is denied or revoked for any of the specified reasons in Rule 14-22.012(1)(a), Florida Administrative Code, the denial or revocation is "for at least one year." This revocation period only provides a lower limit. Rule 14-22.012(1), Florida Administrative Code, further provides: "When a specific period of revocation, denial, or suspension is not specified by this rule, the period shall be based on the criteria of Rule 14-22.0141(4), Florida Administrative Code, as well as Department contractor certification activities." Rule 14-22.0141(4), Florida Administrative Code, provides that a contractor will be "ineligible to bid on Department contracts for a period of time based on the seriousness of the deficiency." Rule 14022.0141(4), Florida Administrative Code, provides examples of factors affecting the seriousness of the deficiency. Under the Rule, the examples of factors affecting the seriousness of the deficiency include impacts on project schedule, cost, quality of work, unsafe conditions allowed to exist, complaints from the public, delay or interference with the bidding process, and the potential for repetition. It is not possible to codify in a rule the precise time period of disqualification for every single instance. Because the facts and circumstances supporting a determination of "good cause" vary, it is impracticable to compile an exhaustive list for each instance.
Findings Of Fact On June 1, 1988, Petitioner Higuero, who is from the country of Columbia, visited one of Respondent's truck terminals and expressed an interest in working for the company as a driver of a tractor-trailer combination. He spoke with the Orlando terminal manager, Brad Schneider, who gave Petitioner an application. In the course of their brief conversation, Petitioner told Mr. Schneider that Petitioner had recently completed a course at Mid-Florida Technical Institute in commercial vehicle driving. Mr. Schneider informed him that Respondent's policy was to require that all new drivers have at least one year's verifiable prior experience or certification of completion of a truck- driving course. Petitioner expressed some concern that he might not have passed the Mid-Florida Tech course. He explained that he had ground the transmission gears several times during the driving test. Shortly after this visit, Petitioner received from Mid-Florida Technical Institute a certificate of competency for having satisfactorily completed a program in commercial vehicle driving. The reverse side of the certificate contained Petitioner's grades. The five-point grading scale ranged from "5," which signifies that the student can perform without supervision and exceeds minimum industry standards, to "1," which signifies that the student has not performed the skill. A "3" means that the student "can perform this skill satisfactorily but requires some assistance and/or supervision. Meets minimum industry standard." A "2" means that the student "can perform parts of this skill satisfactorily, but requires considerable assistance and/or supervision. Does not meet minimum industry [sic] for entry into this occupation." Petitioner received an overall score of "3." He received no grades of "4" and received eight grades of "2" out of a total of 33 grades. He received grades of "2" in coupling and uncoupling a set of double trailers, backing into a parking space on the blind side, and knowledge of applicable laws and load characteristics. During the road test at Mid-Florida Technical Institute, Petitioner's unsteadiness resulted in a minor mishap. While attempting to allow the steering wheel to spin so as to straighten the wheels, Petitioner injured his finger when it became caught in the spinning spokes. Having obtained the certificate and filled in the application, Petitioner visited the Orlando terminal on June 8, 1988. Mr. Schneider accepted the materials and informed Petitioner that Respondent would begin without delay processing the paperwork. Petitioner requested a road test, but Mr. Schneider told him that Respondent did not administer road tests until the personnel department had reviewed the application and checked, among other things, references for three years of past employment. As he had done when giving the application to Petitioner, Mr. Schneider underscored the importance that the application be filled-in completely and, after quickly reviewing Petitioner's application, told him that he would need to document the three years that he claimed he had been self-employed. About a week later, Petitioner returned to the Orlando terminal and demanded to know why he had not yet been contacted. In a somewhat agitated state, he insisted upon a road test. When Mr. Schneider asked him if he had brought with him the documentation concerning the period of his self-employment, Petitioner became more agitated, began to speak more loudly, and raised his demands from a road test to a job. Mr. Schneider told Petitioner to leave, but Petitioner refused until Mr. Schneider threatened to call the Sheriff's Office. Respondent's personnel office in Auburndale, Florida ultimately rejected the application, which was sworn to and notarized, because of numerous falsifications contained within it. The misrepresentations include statements that Petitioner had never received workers' compensation benefits when he had on several occasions; Petitioner had never suffered from, or been treated for, a mental ailment when he had, on both counts; and Petitioner had never been known by another name when, quite recently, he had worked at Disney World under an assumed name. Material omissions include the failure to note the Disney World employment and service in the U.S. Navy. On June 21, 1988, Petitioner submitted an application to be a tractor- trailer operator with an affiliate of Respondent. The application contained the same misrepresentations contained in the above-described application dated June Another application to Respondent dated July 7, 1988, contained the same misrepresentations and added a new one. The application stated that the duration of his service in the U.S. Navy had been from 1984 to 1985. In fact, Petitioner served for only one month, at which time he separated from the service due to unsuitable temperament.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Petition for Relief filed by Petitioner be dismissed. ENTERED this 16th day of June, 1989, in Tallahassee, Florida. ROBERT E. MEALE 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 on the 16th day of June, 1989 COPIES FURNISHED: Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Dana Baird, Esquire General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Margaret Agerton, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Jenaro P. Higuero, pro se 1099 Leeway Court Orlando, FL 32810 Samuel L. Bare, III Bare & Parsons 6601 S.W. 80th Street Suite 109 Miami, FL 33143
Findings Of Fact George Jenkins filed an application for licensure with the Department of State for a Class "A" private investigative agency license. Jenkins is qualified in every respect with the exception of his experience, which is at issue and concerning which further findings are made below. Jenkins served in the Air Police of the United States Air Force from 1953 until 1957. He performed those duties generally performed by military policemen from November 17, 1953, until February of 1957. These duties are generally patrol and guard functions as opposed to criminal investigation. Jenkins worked for Montgomery Ward in Lakeland, Florida, for 1.5 weeks; Wooco in Lakeland, Florida, for 11 weeks; and Imperial Bank in Lakeland, Florida, for 12 weeks. His duties were those of a security guard. Jenkins worked in Florida for Wheeler and Associates from June 30, 1975, until June 30, 1976, repossessing cars. He then worked for Frontier International Investigations in Florida from July 1, 1977, until December 15, 1977, repossessing automobiles. Jenkins also repossessed cars for American Bank of Lakeland from 1973 to January of 1980; Barnett Bank of Lakeland from 1975 until 1979; Mid-Florida Schools Federal Credit Union from 1975 until February of 1980; First District DOT Employees Credit Union from February, 1975, until February, 1980; and Publix Employees Credit Federal Credit Union from July, 1974, until January of 1980. All these businesses are located in Florida. Jenkins seeks to obtain the Class "A" license to continue his business repossessing cars. The record reflects that he has been self-employed and employed by other Class "A" licensees to perform the business since 1973. While Jenkins is a full-time employee of the United State Post Office, there is no question that this has been a major part-time occupation. Jenkins' service with the United State Air Force together with his approximately six months' experience as a security guard and his part-time self- employment and employment with others repossessing cars would meet the total experience requirement of three years, and clearly well over one year of that experience has been in Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department of State grant the application of George Jenkins for licensure as a class "A" private investigative agency. DONE and ORDERED this 13th day of February, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: W. J. Gladwin, Jr., Esquire Assistant General Counsel Department of State The Capitol Tallahassee, Florida 32301 Jonnie M. Hutchison, Esquire 145 East Haines Boulevard Post Office Box AL Lake Alfred, Florida 33850
The Issue The issue for consideration in this case is whether Respondent's license as a professional engineer in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Florida Engineers Management Corporation, for the Board of Professional Engineers, was the state agency responsible for the licensing of professional engineers and the regulation of the engineering profession in Florida. Respondent was licensed as a professional engineer in Florida under license number PE 0013355 issued on September 9, 1968, in the field of mechanical engineering. By Final Order dated July 20, 1988, the Board of Professional Engineers accepted a signed stipulation entered into between Respondent and counsel for the Department of Professional Regulation in settlement of a disciplinary action against Respondent, which stipulation called for Respondent to, inter alia, pay an administrative fine of $5,000 in $1,000 increments to be paid every six months. Subsequent to the entry of that Final Order, the Board furnished Respondent with five fine payment cards, one for each installment of the fine due, which reflected the amount of that installment and the date due. Each installment was for $1,000, and the installments, as reflected on the payment cards, were due of January 20, 1989, July 20, 1989, January 20, 1990, July 20, 1990, and January 20, 1991. Respondent did not pay the installment due on January 20, 1989, and on March 31, 1989, the Board sent him a notice reminding him that his installment due on January 1 had not been submitted. The installment was received by the Board on May 19, 1989, and it sent Respondent a receipt on May 31, 1989, reflecting that payment in the amount of $1,000 had been received. On September 25, 1990, because no further installment payments had been made by Respondent, the Board issued an Administrative Complaint alleging his failure to comply with the terms of the prior Final Order, and after informal hearing, on January 3, 1991, entered a second Final Order in which Respondent was reprimanded and ordered to make a $1,000 installment payment within three weeks from the date of the order and every six months thereafter until the full administrative fine was paid. However, before entry of the second final order, on December 27, 1990, the Board received a payment of $1,000 from the Respondent. This brought the total paid to $2,000. On July 17, 1991, Respondent purchased a money order in the amount of $1,000 from the NCNB's Largo, Florida branch, and forwarded it to the Board. This payment, the third, was received by the Board on July 23, 1991, and brought the total amount paid to $3,000. Respondent claims that at the time the third payment was made, and for a period thereafter, he was having a cash flow problem and made all his payments in cash or by money order, rather than by business or personal check. He also claims that after the July 1991 payment was made, when the remaining two installments were due, he paid them by bank money order but he was unable to find the customer copy of these checks or recall which bank he bought them from. Records of the Board fail to reveal either of the last two installments were paid when due. Therefore, because of the apparent failure to comply fully with the terms of the Final Order as they relate to the fine, in August 1998 representatives of the Board contacted Respondent by letter to advise him that the final two installments had not been paid and of the Board's intention to take further action. By letter dated September 2, 1998, Respondent's counsel forwarded to the Board a check from Respondent in the amount of $2,000 in full settlement of the amount of fine due. In the letter, counsel noted that the last two installments required were not paid "due to oversight on behalf of my client or if paid cannot be proven." Though they are not included in the current Administrative Complaint, counsel also referred in his letter to other requirements of the prior Board order which "might still be outstanding." However, because they were not alleged, and because no mention was made of them at hearing, they are not considered in the resolution of this matter. Respondent maintained at hearing that he sincerely believed he had made all payments due but could not find any evidence thereof in his records. He asserts that aside from the August 13, 1998, letter, he did not receive any notification from the Board, from 1991 on, that he had failed to make his payments. However, as was mentioned previously, he also could not recall from which banks he purchased the two missing money orders. Considering the relative probabilities of the evidence, it is found that Respondent did not make the last two payments when due, and in addition, failed to make the first payment in a timely manner. Respondent contends that he has engineered several large projects in his engineering career, such as the prototypes for Eckerd's pharmacies and Checkers restaurants, without any problems. He also claims he rarely gets any adverse feedback regarding his work or change requests from pertinent building departments. Mr. Spencer, an architect for whom Respondent frequently does work, contends Respondent is the best mechanical engineer with whom he has worked and gets the most work from him of all engineers he retains. He has found Respondent's work to be good and the prototype projects Respondent has worked on have been used repeatedly without problem. Spencer agrees that building departments rarely comment adversely on Respondent's work. Respondent is 77 years old and wants to continue working. He claims he has never been charged or accused of negligence or misconduct other than in the 1988 case which resulted in the original administrative fine. However, records of the Board indicated two complaints were filed against him in 1984, one in 1985, one in 1986, and one in 1989. The records do not reflect the substance of the complaints or the resolution thereof.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Engineers Management Corporation enter a final order in this case suspending Respondent's license as a professional engineer in the discipline of mechanical engineering for a period of six months. DONE AND ENTERED this 28th day of October, 1999, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1999. COPIES FURNISHED: Natalie A. Lowe, Esquire Florida Engineers Management Corporation 1208 Hays Street Tallahassee, Florida 32301 John E. Sullivan, Esquire 349 Pauls Drive Brandon, Florida 33511 Maxwell G. Battle, Jr., Esquire Post Office Box 1309 Kalispell, Montana 59903 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Dennis Barton, Executive Director Board of Professional Engineers Florida Engineers Management Corporation 1208 Hays Street Tallahassee, Florida 32301
The Issue Whether Petitioner is entitled to additional credit for his solutions to three problems on the Principles and Practice of Engineering portion of the engineering licensure examination administered on October 29, 1999, by the National Council of Examiners for Engineers and Surveyors.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: On October 29, 1999, as part of his effort to obtain a Florida engineering license, Petitioner sat for the Principles and Practice of Engineering Examination (Examination). This is a national examination developed and administered by the National Council of Examiners for Engineers and Surveyors (NCEES). Petitioner chose to be tested in mechanical engineering. Petitioner received a raw score of 47 on the Examination. For the mechanical engineering specialization, a raw score of 47 converts to a score of 69. To pass the Examination, a converted score of 70 is needed. Petitioner formally requested (in writing, by letter dated March 13, 2000) that his solutions to Problems 141, 144, and 147 on the Examination be rescored. Petitioner's written request was made to the Board's "Legal Section," which forwarded it to the NCEES. The NCEES's rescoring of Petitioner's solutions to Problems 141, 144, and 147 resulted in his receiving no additional points. The Board received the NCEES's rescoring results on or about April 25, 1999. After receiving a letter from Petitioner (dated May 3, 2000) requesting a "formal hearing," the Board referred the matter to the Division. Problems 141, 144, and 147 were worth ten raw points each. Petitioner received four raw points for his solution to Problem 141. In his solution to Problem 141, Petitioner failed to take into consideration bending stresses and loads. Therefore, in accordance with the requirements and guidelines of the NCEES scoring plan for this problem, the highest raw score that he could have received for his solution to this problem was a four, which is the score he received. Petitioner received a raw score of two for his solution to Problem 144. In rescoring Petitioner's solution to this problem, the NCEES rescorer made the following "comments": A correct solution [to this problem] must include an energy balance on the open feedwater heater to determine the fraction of flow through turbine T1 that is extracted and taken to the open feedwater heater. a correct equation for determining the specific work developed by the two turbines on the basis of one pound entering turbine T1. The equation the examinee has written assumes the same flow through both turbines. determination of the mass rate of flow (m1) at the inlet to turbine T1. This is determined by dividing the net power by the specific net work. determining the rate at which heat is added in the steam generator and reheater. finally, dividing the rate at which heat is added in the steam generator by the heating value times 0.75 with the appropriate conversion factors. The examinee has used the new power (200 MW or 200 x 105)as the rate at which heat is added in the steam generator and reheater. This is incorrect. The scoring plan states 2 RUDIMENTARY KNOWLEDGE . . . OR-(3) determines tons/day = Wnet/7650, Wnet = (h1 - h2) + (h3 - h4) This is what the examinee has done. Based on the scoring plan and the above analysis, a score of 2 is recommended. There has been no showing that the foregoing "analysis" was in any way flawed or that application of the requirements and guidelines of the NCEES scoring plan for this problem should have resulted in Petitioner receiving a raw score higher than two for his solution to Problem 144. Petitioner received a raw score of four for his solution to Problem 147. In rescoring Petitioner's solution to this problem, the NCEES rescorer made the following "comments": The examinee used an incorrect temperature difference in [his] calculation of the heat transferred by convection and radiation from the outer surface of the pipe. Most of the examinee's work for requirement (b) was not needed. In doing that unnecessary work, however, [he] made two significant errors: 1. [He] evaluated a radiation exchange between the steam inside the pipe and the environment surrounding the pipe. The pipe shields the environment surrounding the pipe from the steam. 2. The examinee's equation "Total heat Loss = Conductive + Radiation" is not satisfactory. In attempting to evaluate the heat transfer from the insul[a]ted pipe, [he] assumed that the outer surface heat transfer coefficient was very high; 3.0 is not high. The examinee made no attempt to evaluate the payback period for the insulation. There has been no showing that the foregoing analysis was in any way flawed. For the errors made by Petitioner in his solution to Problem 147, a 50% "grade reduction" was warranted pursuant to the "error analysis" portion of the NCEES scoring plan for this problem. 1/ The remaining portions of the scoring plan for Problem 147 provided as follows: 10: Essentially complete and correct solution. May have one or two minor math, data, or chart reading errors. . . . Grade of 8: A grade of 8 will result from having any combination of the above listed errors which causes a grade reduction between 10% and 50%. A Grade of 6: A grade of 6 will result from having any combination of the above listed errors which causes a grade reduction between 30% and 50%. Grade of 4: 2/ A grade of 4 will result from having any combination of the above listed errors which causes a grade reduction between 50% and 70%. Grade of 2: A grade of 2 will result from having any combination of the above listed errors which causes a grade reduction between 70% and 90%. Grade of Zero: Nothing presented that warrants a grade of at least 10%. It is unclear from a reading of the NCEES scoring plan for Problem 147 whether a grade reduction of 50% should result in a raw score of four or six. The plan is ambiguous in this regard. While it may be reasonable to interpret the plan as requiring that a raw score of six be given where there is a grade reduction of 50%, the plan is also reasonably susceptible to the interpretation that a 50% grade reduction should result in a raw score of four, the score Petitioner received for his solution to Problem 147. It therefore cannot be said that the scoring of his solution to this problem was inconsistent with the problem's scoring plan, as reasonably construed.
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 from the NCEES on the Principles and Practice of Engineering portion of the October 29, 1999, engineering licensure examination. DONE AND ENTERED this 13th day of October, 2000, 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 13th day of October, 2000.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel and the entire record compiled herein, the following relevant facts are found. Gary L. Wheeler, Respondent, is a graduate of Bob Jones University, having received a Bachelor of Science degree therefrom in accounting in 1974. On July 27, 1979, Respondent received his California certificate as a certified public accountant. Thereafter, Respondent filed an application to obtain a reciprocal C.P.A. certificate in Florida based on his certificate issued by the State of California (Certificate No. E-28234). His application was denied by the Petitioner on October 26, 1979, for the following reason: Applicant failed to satisfy the requirements set forth in Section 7(3)(b), Chapter 79-202, Laws of Florida, inasmuch as the license issued to Gary L. Wheeler in California is not issued under criteria substantially equivalent to that in effect in Florida at the time the California license was issued. Bob Jones University was not recognized as an accredited university in Florida by the Board when Respondent received his California certificate inasmuch as it was not listed among the institutions of postsecondary education by the Council on Postsecondary Accreditation (COPA). During September, 1976, Petitioner adopted the COPA list of schools as the schools from which it would accept graduates to sit for its examination. This was done for the avowed purpose of ensuring minimum competence and technical fitness among the ranks of Florida accountants. Douglas H. Thompson, Jr., the Petitioner's Executive Director since 1968, is the Board's chief operating officer and carries out its functions respecting applications for licensure. As such, Mr. Thompson was the person charged with examining Respondent's application pursuant to his California certificate to determine whether the Respondent's certificate was issued under criteria "substantially equivalent" to Florida's licensing criteria. Respondent's application was considered by the Board on two (2) occasions and rejected because Respondent's alma mater, Bob Jones University, is not listed among the accredited schools and universities by COPA. See Sections 473.306; 473.307 and 473.308, Florida Statutes, as amended; and Chapter 21A-28.06, Florida Administrative Code. As an aside, it was noted that the Board, in adopting its procedure for evaluating the criteria for applicants who were seeking to obtain certificates based on the reciprocal qualifications guidelines also adopted other equivalency procedures which provide Respondent an alternative method for which he may obtain a Florida certificate. In this regard, Respondent is only approximately six (6) quarter hours away from obtaining his certificate under the alternative equivalency procedures established by the Board. See Chapters 21A-9.01 through 9.04(4), Florida Administrative Code.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent's appeal of the Board's action in denying his application for a reciprocal license to practice public accounting based on the issuance of his California certificate be DENIED. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 26th day of March, 1980. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675
The Issue Whether Petitioner's response to the questions on the October 1990 Florida Professional Engineers Examination were sufficient to allow him to receive a passing grade. Whether problems in Petitioner's examination occurred which were due to the Department's change in the list of reference materials allowed into the examination room.
Findings Of Fact In order to obtain licensure as a Professional Engineer in Florida, Petitioner is required to successfully complete the licensure examination. Petitioner sat for the October 1990 National Engineering Licensure Exam. He received an overall score of 69.1%. A passing score for the examination was 70.0%. The Professional Engineer Candidate Information Booklet advised candidates that the reference materials taken into the examination room had to be formally bound, copyrighted and published. The only exception to this rule was the Standard Building Code, which is contained in a three-ring binder. On the first day of the examination, Petitioner learned that the Board of Engineers had approved the use of additional codes, standards and manuals that are bound in three ring binders during the examination. One of these newly approved references was the Highway Capacity Manual, Transportation Research Board. Petitioner did not have his copy of the Highway Capacity Manual with him at the examination site because of the prior prohibition against its use during the exam. Petitioner did not object to the last minute expansion of the reference materials list until after he received his test results. The examination questions and answers challenged by Petitioner are Questions #124 and #425. Question #124 involved a five-sided figure that contained curves in two of its sides. According to the situation given as part of the test question, this figure was a parcel of land. The engineer was required to compute the area of the parcel. The first requirement for part (a) of the question was the computation of the area of traverse ABCDEA in acres. The figure provided some of the sector measurements in feet as well as a stated radius for each curved area. A review of Petitioner's calculations for part (a) reveals that he did not close the figure. Closure is required in a problem involving land boundaries. Thus, he was not able to compute the area and convert the measurement to acres, as required. Each side had to be included to obtain the proper area measurement. Petitioner did not demonstrate entitlement to credit for his incorrect answer to part (a) because he did not follow the instructions or demonstrate competency in the engineering principles tested by this question. The scoring plan for the examination did not provide partial credit for the incomplete calculations made by Petitioner on this portion of the exam. Petitioner received full credit for part (b) of Question #124 during the original grading of the exam so that portion of the question is not in dispute. Part (c) of Question #124 required the exam candidates to compute the length of curve DE in feet. The measurement for sector DE was provided in feet along with the measurement for the radius. Petitioner's answer to Question #124, part (c) was 514.39 feet. The correct answer was 514.79 feet. Although Petitioner's solution is similar to the correct answer, he did not compute the length of the curve for the side DE as required by the exam instructions. Instead, he computed the central angle for the circular arc DE. Even in his computation of the central angle, Petitioner used a central angle of 58.94 instead of the correct angle of 58.99. The examination sought to test Petitioner's ability to compute the length of a curve. Petitioner ignored the instruction and used a different calculation method that was not requested. As a result, no credit was given for the wrong answer. Petitioner did not demonstrate competency in the engineering principles being tested. Question #425 was a multiple-choice problem with ten parts. The responses were to be made from five alternatives for each part. Petitioner received eight of the ten possible points for the question. Only subparts (3) and (4) were answered incorrectly. Petitioner did not demonstrate entitlement to credit for his incorrect answer to subpart (3) of Question #425. He did not provide evidence to support his theory that his answer "D" (1,390 gallons) was within a reasonable margin of error and should be given credit. The correct answer is "E" (1,410 gallons). The necessary calculations reveal that the actual answer is 1,408 gallons. The question asks for the multiple choice selection which is "most nearly" accurate based on the information given in subpart (2). Based upon the problem itself, Petitioner's additional input regarding temperature and expansion possibilities are without merit. The problem was not solved as presented. Petitioner did not demonstrate his ability to properly calculate the amount of substance occupying a particular volume. Subpart (4) of Question #425 deals with the symbols for roadway materials. The candidates were expected to select one of the listed materials as the one most likely used at a particular stage of roadway construction. Petitioner was unable to reference the Highway Capacity Manual when answering this question because the original instructions in the Professional Engineer Candidate Information Booklet instructed candidates that the only three-ring binder book allowed into the exam was the Standard Building Code. Although the decision prohibiting the entry of the Highway Capacity Manual into the examination room was changed prior to the exam, Petitioner was not alerted in time to have it available for his use. Prior to final hearing, Petitioner contended that if he had been given sufficient notice, he could have used the Highway Capacity Manual to define the symbols in subpart (4) of Question #425. At final hearing, Petitioner stated the answer could be in that manual or one of the other handbooks in the same series. The Highway Capacity Manual does not contain definitions for the symbols set forth in subpart (4). The Asphalt Handbook may contain such symbols. This reference would have been allowed into the examination even prior to the changed ruling on references contained in three-ring binders. The Hearing Officer was unable to find all of the symbols in subpart (4) in the pages provided by Petitioner. Petitioner failed to demonstrate that the change in the Department's policy regarding references in three-ring binders affected his ability to correctly answer subpart (4) of Question #425. He should not be given credit for his incorrect response on the answer sheet.
Recommendation Based upon the foregoing, it is RECOMMENDED: The Department should enter a Final Order which denies Petitioner's challenges to Questions #124 and #425. The exhibits marked "confidential" should remain sealed and not open to public inspection. DONE and ENTERED this 12th day of November, 1992, at Tallahassee, Florida. VERONICA E. DONNELLY 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 12th day of November, 1992. APPENDIX Petitioner's proposed findings of fact are addressed as follows: Accepted. See HO #2. Accepted. See Conclusions of Law. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. Contrary to fact. Rejected. Contrary to fact. Accepted. See HO #6. Accepted. Rejected. Contrary to fact. See HO #14. Accepted. Accepted. Rejected. Argumentative. Rejected. Contrary to fact. See HO #9. Rejected. Contrary to fact. See HO #15. Rejected. Contrary to fact. See HO #14. There was no number 20 in Petitioner's findings. Rejected. It was Petitioner's responsibility to meet this burden. Rejected. Improper argument. Rejected. Argument as opposed to factual finding. Rejected. Contrary to fact. See HO #23. Rejected. Speculative and contrary to evidence. Accepted. Accepted, except for the disadvantage issue. Speculative. Rejected. Contrary to fact. Rejected. Improper summary. Argumentative. Respondent's proposed findings of fact are addressed as follows: Accepted. See HO #2. Accepted. See Preliminary Statement. Accepted. Accepted. See HO #7. Accepted. See HO #9. Accepted. See HO #12. Accepted. Accepted. See HO #11 and #14. Accepted. See HO #15. Accepted. See HO #18-#19. Accepted. See HO #23. COPIES FURNISHED: Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Angel Gonzalez, Executive Director Board of Professional Engineers 1940 North Monroe Street Tallahassee, FL 32399-0792 Russell A. Ferlita 1220 LaBrad Lane Tampa, FL 33613 Vytas J. Urba, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-07950
The Issue The issue in this case is whether Petitioner's request for license by endorsement as a professional engineer should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, James R. Eason (Petitioner), is the pavement management coordinator for the Hernando County Public Works Department. He is a registered professional engineer in the State of Georgia, having received Professional Engineering Registration Number 17320 in 1988. In March 1997, Petitioner filed an application with Respondent, Board of Professional Engineers (Board), seeking licensure by endorsement as a professional engineer in this state. On July 1, 1997, the Board issued its preliminary decision in the form of a letter advising Petitioner that his application had been denied. As grounds, the Board stated that Petitioner had received a raw score of 67 with five points awarded for Veterans Preference on the Principles and Practice portion of the examination. The letter further explained that a raw score of 70 or above was required in order for his score on the Georgia examination to be recognized in the State of Florida and that "Chapter 471, F.S. does not provide for awarding of points for Veterans Preference." The denial of the application prompted Petitioner to bring this action. Petitioner is a graduate of, and holds a bachelor's degree in civil engineering from, the Georgia Institute of Technology. He has a record of four years active engineering experience of a character indicating competence to be in responsible charge of engineering. The parties have also stipulated he is of good moral character, and he has never been under investigation in another state for any act which would constitute a violation of Chapters 455 or 471, Florida Statutes. Petitioner passed the Fundamentals portion of the professional engineering examination administered in 1973 by the State of Georgia. He obtained a score of more than 70. In April 1988, Petitioner took the Principles and Practice portion of the examination. A grade of 70 was required to pass the Georgia examination. Petitioner received a grade of 67 on the initial scoring of the Principles and Practice portion of the examination, plus a five-point Veterans Preference credit, for a total grade of 72. The Veterans Preference credit is provided by Georgia law to all candidates who are members or former members of the Armed Forces of the United States and meet certain service requirements. In Petitioner's case, he had served eight years on active duty as a member of the United States Naval Reserve, and he was honorably discharged as a Lieutenant on July 3, 1969, upon expiration of his active duty commitment. At least ninety days of his active duty military service was during wartime or at a time when military personnel were committed by the President of the United States. The examination administered by the State of Georgia in April 1988 was a national examination published by the National Council of Examiners for Engineering and Surveying, and it was identical to the examination administered by the State of Florida at that time. Florida, like Georgia, requires a grade of 70 to pass the examination, but it does not provide a Veterans Credit for service to candidates who are members or former members of the Armed Forces of the United States. Therefore, in the State of Georgia, a veteran can pass the examination with a raw score as low as 65. To this extent, the two examinations are not substantially equivalent. Among other things, Petitioner pointed out at hearing that he needed only three points to achieve a passing grade on the Principles and Practice portion of the examination. Therefore, he concluded that the awarding of that amount of extra points for being a veteran amounted to only a single standard deviation, and thus the extra points were immaterial in relation to the overall score. However, the Board does not construe this three-point deficiency as being "immaterial," and had Petitioner received the same score in Florida, he would not have passed the examination.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Professional Engineers enter a Final Order denying Petitioner's request for licensure by endorsement as a professional engineer. DONE AND ORDERED this 25th day of November 1997, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 1997. COPIES FURNISHED: Joseph M. Mason, Jr., Esquire Post Office Box 1090 Brooksville, Florida 34605-1900 Edwin A. Bayo, Esquire Department of Legal Affairs The Capitol Tallahassee, Florida 32399-1050 Angel Gonzalez, Executive Director Board of Professional Engineers 1940 North Monroe Street Tallahassee, Florida 32399-0755
