Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to the issue herein, Petitioner, Ronald R. Corum, Examinee Identification No. 200619, was a candidate for licensure by examination as a professional engineer, and the Board of Professional Engineers was and is the state agency in Florida responsible for the licensing of Professional Engineers and the regulation of the practice of professional engineering in the state of Florida. Petitioner sat for the October 1990, Florida Professional Engineer Licensure Examination (Principles and Practice of Engineering). This part of the examination is divided into a morning session and an afternoon session. The morning session requires the examinee to choose four essay questions from a choice of twelve essay questions and produce a numerical solution to each question. The afternoon session is multiple choice and the examinee has to solve four questions from a choice of twelve questions. Each of the questions, both morning and afternoon, are worth ten points (raw score) for a total maximum raw score of 80 points, with a minimum passing raw score of 48 points. Petitioner received a raw score of 47 points. Question 124 was one of the essay question selected by Petitioner to solve in morning session of examination. Question 124 consisted three parts, 124A, B and C which required the examinee to: compute the area of traverse (in acres) a five-sided polygon; compute the net area (in acres) in the land parcel after adding sector area AB and excluding sector area DE; and compute the length of curve DE (in feet). The problems posed by Question 124 are not uncommon in the day to day practice of professional engineering and are not particularly difficult to solve. Petitioner attempted to solve Part A by using the method of coordinates which is an acceptable method of determining the area of a traverse. However, the Petitioner made a fundamental error in applying the method, not a simple mathematical error, in that he did not return to the beginning point of the traverse which resulted in an unrealistic answer. The correct answer to Part A was 16.946 acres. The Petitioner calculated the area to be 126.12 acres. In attempting to solve Part B, the Petitioner misapplied a correct methodology by erroneously expressing the central angle of the area in degrees rather than in radians. A radian is equal to approximately 57 degrees and this resulted in substantial error in Petitioner's calculation. The correct answer was 17.607 acres. Petitioner's answer was 219.63 acres which was not possible in relation to the area the Petitioner had already calculated for the traverse in Part A. This was a very serious error, a fundamental error, not a mathematical error. The maximum raw score for question 124 was ten points. Petitioner received a raw score of two points. On review, Petitioner was again granted only two points out of ten possible points. The examinee's identity is not known to the scorer during the initial scoring or the review. Both question 124 and the scoring plan used in grading question 124 were approved by the National Council of Examiners of Engineers and Surveyors (NCEES). The scoring of question 124 was weighted so that Parts A and B were worth four points each, and Part C was worth two points. Petitioner correctly answered Part C and received two points. The Petitioner did not receive any points for Part A or Part B. The examinee was not aware of this weighting policy at the time of the examination. The scoring plan for question 124 which was used by the NCEES grader was set up in six (6) categories from 0 - 10 in two-point increments as follows: 10 - Exceptionally competent. 8 - More than minimum competence but less than exceptionally competent. 6 - Minimum competence. 4 - More than rudimentary knowledge but insufficient to demonstrate competence. 2 - Rudimentary knowledge. 0 - Nothing presented to indicate significant knowledge of the problem. Petitioner's use of acceptable methodologies in attempting to solve the problems of Parts A and B may indicate at least rudimentary knowledge and possibly more than rudimentary knowledge but insufficient knowledge to demonstrate competence which would have entitled Petitioner to at least two points on Parts A and B each. However, the unreasonableness and the impossibility of his answers and his failure to recognize the unreasonableness and impossibility of his answers coupled with his fundamental error in solving the problems of Parts A and B were such that the Petitioner did not demonstrate significant knowledge of the problems for Parts A and B. Therefore, any credit that would have been given for using acceptable methodologies in attempting to solve the problems would be negated by this lack of significant knowledge of the problems. Because of this lack of significant knowledge of the problems the scorer correctly adjusted Petitioner's score on Part A and Part B each to zero. Unreasonable answers result in credit being deleted, and this policy is uniform among all of the states. However, the examinee is not made aware of this policy at the time of the examination. There was no instruction or guide to indicate to the examinee that if the examinee recognized that any answer was unrealistic that the examinee should so indicate on the answer sheet. Likewise, there was no instruction or guide to indicate that the examinee would be more heavily penalized if the examinee did not indicate on the answer sheet that the answer was unrealistic. An examinee's inability to recognize an unrealistic answer and to so indicate on the answer sheet without specific instruction goes to the examinee's competence as a professional engineer. Therefore, Petitioner has not been treated unfairly by the lack of instruction or guide advising him to indicate his ability to recognize an unrealistic answer on the answer sheet. The NCEES scorer for question 124 attempted to award the same score to all examinees of the October 1990 examination who gave similar unrealistic answers to question 124 as did Petitioner without noting on the answer sheet that the answer was unrealistic. The examinees are not informed of how the scoring plan will be applied in advance of the examination or that the essay question will be scored in two- point increments only. There was no evidence that this information would be of significant benefit to the examinee. In fact, the Petitioner did allocate his time in attempting to solve question 124 similar to the weighting of the scoring plan, spending only a small part of the time on Part C. Part B should have identified the curved areas to be computed as segments, rather than sectors. Petitioner attempted to solve Part B as though it referred to segments, and did not raise this issue in the request for review. Petitioner's use of degrees rather than radians would have been equally erroneous in determining the area of a sector. There was no evidence to show that identifying the curved area as a sector rather than a segment had any effect on Petitioner's attempt to solve the problem. The official solution to Part B contained a typographical error made during the transcription of the grader's handwritten solution. This had no effect on the scoring of Part B. The solution cannot affect the answer given by the examinees, as the solution is only available after the examinee has completed the examination and is challenging the scoring. There is a lack of competent substantial evidence in the record to establish that the scores which Petitioner received on Part A and Part B of question 124 of the October, 1990 Professional Engineering Licensure Examination were incorrect, unfair or invalid, or that the examination, and subsequent review, were administered in an arbitrary or capricious manner.
Recommendation Based upon the foregoing, it is RECOMMENDED: That Respondent enter a Final Order dismissing the Petitioner's challenge to the grading of his response to question 124 on the October 1990 Professional Engineer's Licensure Examination. DONE and ENTERED this 26th day of November, 1991, in Tallahassee, Florida. WILLIAM R. CAVE 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 26th day of November, 1991. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in the case. Rulings on Proposed Finding of Fact Submitted by the Petitioner Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which adopts the proposed finding of fact: 1 (2); 2 (3); 3 (3); 4 (5); 5 (5); 6 (7); 7 (9); 8 (9); 9 (13); 10 (13); 11 (12); 12 (9); 13 (5); 14 (6); 15 (9); 16 (11); 17 (7); 18 (1); 20 (16); 21 (16) and 22 (18). Proposed finding of fact 19 is not supported by substantial competent evidence in the record but see finding of fact 11. Rulings on Proposed Findings of Fact Submitted by the Respondent 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which adopts the proposed findings of fact: 1 (2); 2 (3); 3 (4); 4 (5); 5 (6); 6 (6); 7 (7); 8 (8); 9 (9); 10 (12); 11 (11); 12 (15); 13 (9, 16); 14 (17); 15 (18). COPIES FURNISHED: Wellington H. Meffert, II, Esquire Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 David W. Persky, Esquire Spicola & Larkin 806 Jackson Street Tampa, FL 33602 Angel Gonzalez, Executive Director Board of Professional Engineers 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792
The Issue The issues in this case are whether disciplinary action should be taken against Respondent, Paul Marchese, Jr., d/b/a Prima Construction, for violation of Subsection 489.129(1)(q), Florida Statutes (2006), as alleged in the Administrative Complaint; and, if so, what disciplinary action should be imposed on his license to practice contracting.
Findings Of Fact Based on the evidence and testimony of the witnesses presented and the entire record in this proceeding, the following facts are found: At all times relevant to this proceeding, Respondent was a certified residential contractor, having been issued License No. CRC057007 by the Florida Construction Industry Licensing Board (Board). At all times relevant to this proceeding, Respondent, Paul Marchese, Jr., d/b/a Prima Construction, has been doing business as Prima Construction. ABC Supply Company, Inc. (ABC Supply Company), operates as a roofing supply distributor in the State of Florida. Respondent completed and signed a credit application with ABC Supply Company. The credit application required the applicant to provide the following information: type of business ownership; address of business ownership; officers of business ownership; and credit references. The credit application includes, if applicable, a space to list the applicant's state contractor license number. The credit application includes a personal guaranty that must be completed if the business ownership has less than $2 million in annual sales, is less than two years old, has less than ten employees, or is a partnership or proprietorship. If the personal guaranty section is completed and signed, the guarantor then becomes responsible and personally liable for any debts incurred by the business ownership. Respondent listed the applicant for the credit application with ABC Supply Company as "P & C Realty (Prima)" and signed the application as the president of the company. Respondent listed his certified residential contractor License No. CRC057007 on the credit application. P & C Realty is owned by Respondent and his wife. On or about January 18, 2002, Petitioner signed the ABC Supply Company credit application as president of "P & C Realty (Prima)." In addition to signing as the applicant, Petitioner signed the "guaranty" portion of the application, in which he agreed to serve as "guarantor" of any indebtedness of the buyer to ABC Supply Company. ABC Supply Company approved the credit application, which allowed P & C Realty to purchase roofing materials from ABC Supply Company. From February 2002 to April 2002, P & C Realty purchased various roofing materials from ABC Supply Company. The materials were used in the repair of houses owned by P & C Realty, and the houses were subsequently sold by P & C Realty. P & C Realty failed to pay for the roofing materials that were purchased between February 2002 to April 2002, and the account became past due. ABC Supply Company filed a civil lawsuit against P & C Realty and Respondent in the county court in Hillsborough County, Florida. On September 13, 2005, Hillsborough County entered a final judgment in favor of ABC Supply Company and against P & C Realty and Respondent, jointly and several, in the amount of $6,319.68 for P & C Realty and Respondent's failure to pay for roofing materials.1/ Respondent did not appeal the final judgment, but failed to satisfy the final judgment within 90 days. Moreover, as of the date of this proceeding, Respondent had not satisfied this judgment. The total investigative costs of this case to the Board, excluding costs associated with an attorney's time, for DBPR Case No. 2006-001485, was $288.68. On October 28, 2002, Petitioner filed a Final Order in a prior disciplinary case against Respondent in DBPR Case No. 2000-08685. That Final Order adopted and incorporated by reference the allegations in the Administrative Complaint. The Administrative Complaint alleged Petitioner violated the Standard Building Code of Sarasota County by first performing construction work without first obtaining the required building permit from the Sarasota Building Department, and, as a result thereof, the Sarasota County General Contractors Licensing and Examining Board revoked Respondent's privileges to pull permits in Sarasota County, Florida. Based on the foregoing, the Final Order in DBPR Case. No. 2000-08685 found Respondent guilty of violating Subsection 489.129(1)(h), Florida Statutes (2006), by being disciplined by any municipality or county for any act or violation of this part. Petitioner imposed a $2,500.00 fine and $165.51 in costs on Respondent in the case. On December 11, 2001, Petitioner filed a Final Order in a prior disciplinary case against Respondent in DBPR Case Nos. 2000-02105 and 2000-06442. The Final Order reflected that the case was resolved by means of a Settlement Stipulation in which Respondent agreed to pay a $5,000.00 fine, pay costs of $436.42, and, in the future, not violate the provisions of Chapters 455 and 489, Florida Statutes (2006), or the rules promulgated pursuant thereto. In the Settlement Stipulation related to the foregoing cases, Respondent neither admitted nor denied the allegations in the Administrative Complaints.2/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered as follows: Finding Respondent guilty of having violated Subsection 489.129(1)(q), Florida Statutes (2006), and imposing as a penalty an administrative fine in the amount of $5,000.00, proof of satisfaction of the civil judgment for Case No. 2003-7188-CC, and suspension of Respondent's certified residential contractor license until the civil judgment is satisfied; and Requiring Respondent to pay Petitioner's costs of investigation and prosecution, excluding costs associated with an attorney's time, in the amount of $288.68. DONE AND ENTERED this 8th day of May, 2007, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 8th day of May, 2007.
The Issue The issue presented is whether Mr. Lord should be granted additional credit for his answer to question number 144 on the April 1990 Professional Engineer licensure examination.
Findings Of Fact Mr. Lord (Candidate #301402) received a score of 66.3 percent on the April 20, 1991, Principals and Practice portion of the Professional Engineer examination. A minimum passing score was 70.0 percent. Mr. Lord challenged the scoring of his response to question number 144. Question number 144 is an essay question involving an assembly line problem where four separate stations are used to assemble a product in sequence. A fifth station can assist in maximizing the number of finished products produced per hour, and is capable of performing all operations. The correct answer to question number 144 was 100 products per hour, while Mr. Lord's answer was 25 pieces per hour. Petitioner received a score of 2 (out of a possible 10) points on question number 144. This was based on the scoring plan developed for the exam by the National Council of Examiners for Engineering and Surveying. Mr. Lord used a method of averaging station assembly times to determine the maximum average number of products each station could produce. The averaging method gave a solution which did not identify the central issue presented by the essay question: identifying and eliminating the bottlenecks in production. Mr. Lord also made an assumption that the initial four stations could do all operations, thus defining the model inaccurately. This misreading allowed Mr. Lord to use an averaging methodology. Mr. Granata, the Department's expert, testified that it is a coincidence of the numbers that if you multiply Respondent's answer (25) by four (the initial number of machines) you get the Board's answer (100). Mr. Greenbaum, Petitioner's expert witness, testified that Petitioner's answer is "unique" and that he, as an expert, would have answered the question using a methodology similar to the one developed by the Department's expert, Mr. Granata, and by the NCEE (National Council of Examiners for Engineering).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the challenge to the grading of Mr. Lord's response to question 144 on the April 1990 Professional Engineer licensure examination be dismissed. RECOMMENDED this 14th day of March, 1991, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 14th day of March, 1991. COPIES FURNISHED: William F. Whitson, Law Clerk Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Curtis Lord 1416A Old Lystra Road Chapel Hill, NC 27514 Rex Smith, Executive Director Department of Professional Regulation Board of Professional Engineers 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue This is a license discipline proceeding in which the Petitioner seeks to have disciplinary action taken against the Respondent on the basis of alleged violations of various specified provisions of Section 489.129(1), Florida Statutes. The allegations are set forth in a seven count Administrative Complaint.
Findings Of Fact At all times pertinent to this proceeding, Respondent was a Certified General Contractor, having been issued license number CG C046419, by the Florida Construction Industry Licensing Board. At all times pertinent to this proceeding, Respondent was licensed in an individual capacity and thereby responsible for all his contracting activities. On June 6, 1993, Respondent, doing business as Universal General Contractors, entered into a construction contract with the Fagnanis for the remodeling of a bathroom in their residence located at 3440 Northeast 170th Street, North Miami Beach, Florida 33160. The contracted price was three thousand eight hundred dollars ($3,800,00). The Fagnanis paid at least two thousand seven hundred dollars ($2,700.00) to the Respondent as payment toward the contracted work. The written contract between the Respondent and the Fagnanis did not include the Respondent's contractor's license number. That written contract had printed on it the business name "Universal General Contractors." When they entered into the contract, the Fagnanis thought they were doing business with a company named "Universal General Contractors." At no time material hereto was Respondent registered with the Construction Industry Licensing Board as the licensed qualifier for Universal General Contractors. Construction commenced on or about August 20, 1993. Respondent failed to obtain a building permit or inspections for the Fagnani project. Shortly after commencing the project, Respondent informed the Fagnanis he had to go to Boca Raton for an estimate, but would return to finish the project. Respondent failed to return to finish the Fagnani project. Respondent abandoned the Fagnani's project without just cause or notification to the Fagnanis. Respondent did not respond to any attempts by the Fagnanis to contact him concerning the completion of their project. At the time Respondent abandoned the project the work was not complete. At the time of abandonment, the percentage of work completed was substantially less than the percentage of the contract price paid by the Fagnanis. On December 28, 1993, as a result of Respondent's failure to complete the project, the Fagnanis filed a civil suit against Respondent in Case Number 93-16225 SP23(03), County Court in and for Dade County, Civil Division. On January 11, 1994, Respondent was properly served with notice of the civil suit. On January 27, 1994, a Default Final Judgment was entered against Respondent in favor of the Fagnanis. The Default Final Judgment entered against Respondent in the case was in the principal amount of two thousand five hundred dollars ($2,500.00) and costs of one hundred nine dollars ($109.00) for a total amount of two thousand six hundred nine dollars ($2,609.00), and bore interest at the rate of 12 percent per year. The Default Final Judgment is related to Respondent's practice of contracting. To date, Respondent has failed to satisfy the terms of the Default Final Judgment. Respondent failed to satisfy the terms of the Default Final Judgment within a reasonable time. Respondent's incompetence and misconduct in overseeing the contracting and financial activities of his construction practice has resulted in a two thousand six hundred nine dollar ($2,609.,00) loss to the Fagnanis. The Respondent has been the subject of prior disciplinary action by the Construction Industry Licensing Board. In two prior cases (DBPR Case Nos. 93-12155 and 94-04871) the Board has issued final orders finding the Respondent guilty of several provisions of the statutes regulating contractors. Several of the prior violations are of the same type as the violations at issue in this case.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case to the following effect: Adopting the foregoing findings of fact and conclusions of law and concluding that the Respondent is guilty of the violations alleged in all seven counts of the Administrative Complaint; Revoking the Respondent's license; Ordering the Respondent to pay administrative fines in the total amount of twenty-five thousand dollars ($25,000.00); Ordering the Respondent to pay restitution to Mr. and Mrs. Fagnani in the amount of two thousand six hundred nine dollars ($2,609.00); and Ordering the Respondent to pay the costs incurred in the investigation and prosecution of this proceeding in an amount to be determined by the Construction Industry Licensing Board. DONE AND ENTERED this 22nd day of April, 1997, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1997.
The Issue The ultimate issue to be resolved in this proceeding is whether the Petitioner should be awarded a doctor of education degree by Florida State University. Petitioner contends that he properly completed the requirements for the degree, that a valid offer of the degree was made to him, that he accepted the offer, and that the degree was then wrongfully withheld. The university contends that Petitioner did not meet the requirements for the degree and that no valid, enforceable offer of it was made to Petitioner.
Findings Of Fact In 1976, Petitioner was admitted into the doctoral program in biology at Florida State University. He applied to transfer to the science education program and was admitted to the doctoral program in science education within the College of Education at Florida State University on June 24, 1977. He was pursuing a doctor of philosophy (Ph.D.) degree. Among the requirements that Petitioner needed to meet in order to receive the degree were successful completion of a diagnostic examination, completion of thirty-six resident hours of course work, course work in the field of statistics, a preliminary examination, approval of a prospectus for a doctoral dissertation, and presentation of an acceptable dissertation and a successful dissertation defense. Following his admission into the Ph.D. program in science education, a supervisory committee was established for the Petitioner, and a major professor was appointed. It was the major professor's and supervisory committee's function to monitor Petitioner's progress and ultimately to make a recommendation as to whether petitioner should be awarded a degree. By November 7, 1980, Petitioner had completed all of the requirements for a Ph.D. degree except for the presentation of his dissertation and the dissertation defense. These were scheduled to be conducted by the supervisory committee on November 7, 1980. Petitioner had been advised by at least two members of the committee that he might not be ready to present and defend his dissertation. Petitioner felt that he was. On November 7, 1980, Petitioner met with his supervisory committee and presented and defended his dissertation. After his presentation, Petitioner left the room, and the committee evaluated the dissertation and defense. The committee unanimously concluded that the dissertation and defense were inadequate. The dissertation was not marginally inadequate. It was grossly below standards. The committee unanimously and appropriately concluded that the dissertation and defense were not acceptable, and that Petitioner had not met the requirements for a Ph.D. degree. Petitioner's major professor felt that the Petitioner had devoted considerable time, energy, and hard work to the degree program. He was concerned that the effort not be totally wasted. He requested that the committee consider accepting the dissertation as adequate for the award of a doctor of education (Ed.D.) degree or a "master's specialist" degree, and that the committee recommend that Petitioner be awarded one of those degrees or that he be allowed to continue working toward a Ph.D. degree. None of the members of the supervisory committee had had experience with the Ed.D. degree. They all considered it an inferior degree and felt that awarding it to Petitioner would constitute something of a "consolation prize." In fact, an Ed.D. degree from Florida State University is not intended to be an inferior degree. Its focus is somewhat different, but the requirements for obtaining the degree are basically the same. The committee was mistaken in considering the offer of such a degree to Petitioner. Indeed, the requirements for an Ed.D. degree being similar, and in some cases identical to those for the Ph.D. degree, Petitioner had not qualified for the award of an Ed.D. degree. After the committee adjourned its proceedings on November 7, Petitioner's major professor discussed the committee's actions with Petitioner. He told Petitioner that pending proper approval, Petitioner would have the options of continuing to work toward a Ph.D. degree, or receiving an Ed.D. or master's specialist degree. It appears that the major professor was overly sensitive about the Petitioner's feelings, and he may not have bluntly advised Petitioner that he failed his dissertation, presentation, and defense. Petitioner considered his options and told his major professor that if it was possible, he would be amenable to accepting an Ed.D. degree. The major professor contacted administrative officials and was advised that the award of an Ed.D. degree would be possible. The major professor advised the Petitioner of that and told him that pending approval from the department chairman who had charge of the science education program, Petitioner could receive the Ed.D. degree. The major professor also advised Petitioner that some revisions would need to be made in the dissertation and that the title page would need to be retyped in order to reflect that it was being submitted in support of an Ed.D. degree. Petitioner complied with the direction to retype the first page, but made only minor revisions in the dissertation. Members of the supervisory committee signed off on the dissertation as being acceptable in support of an Ed.D. degree. The matter was submitted to the department chairman. The department chairman read the dissertation and concluded that it was grossly inadequate. He determined that he would not authorize the award of an Ed.D. degree because Petitioner would need to be properly accepted into an Ed.D. program before he could be awarded such a degree, and additionally because he considered the dissertation inadequate to support an Ed.D. degree. This action was communicated to the supervisory committee. The committee met again and determined that since the Ed.D. degree could not be awarded, that Petitioner should be given failing grades for the dissertation, presentation, and defense. Prior to the department chairman's review of the dissertation, Petitioner had paid his fees and was anticipating being awarded an Ed.D. degree. Since it was not approved by the department chairman, the degree was not awarded. Thereafter, the Petitioner opted not to apply to have his work considered in support of an Ed.D. degree or master's specialist degree. He continued working toward a Ph.D. degree for approximately six months. Ultimately, he decided to drop out of the program, and he initiated this proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby, RECOMMENDED: That a final order be entered by Florida State University denying Petitioner's application for award of an Ed.D. degree and dismissing the Petition for Administrative Hearing. RECOMMENDED this 24th day of January, 1983, in Tallahassee, Florida. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1983. COPIES FURNISHED: John D. Carlson, Esquire Woods, Johnston & Carlson 1030 East Lafayette Street Suite 112 Tallahassee, Florida 32301 Patricia A. Draper, Esquire Charles S. Ruberg, Esquire Florida State University Suite 311, Hecht House Tallahassee, Florida 32306 Dr. Bernard F. Sliger President Florida State University 211 Westcott Tallahassee, Florida 32306
The Issue The issue for resolution in this proceeding is whether Petitioner is entitled to additional credit for his response to question 124 in the Principles and Practice of Engineering portion of the engineering licensure examination administered on October 30, 1998, by the National Council of Examinees for Engineers and Surveyors (NCEES).
Findings Of Fact Petitioner is a candidate for licensure as a professional engineer. On October 30, 1998, Petitioner sat for the Principles and Practice of Engineering portion of the examination in civil engineering. This is a national examination developed, controlled, and administered by the NCEES. Respondent is a Florida non-profit corporation created by Section 471.038, Florida Statutes, to provide administrative and other services to the Florida Board of Professional Engineers (Board). Petitioner was notified in January 1999, that his raw- score on the examination was 45, which converted to a full score of 67, was below the required passing score of 70. He contested the score and asked for a rescore of his responses to examination questions 123 and 124. NCEES reviewed the responses and awarded two additional points for question 123; it awarded no additional points for question 124. The rescore resulted in a raw-score of 47 and a full score of 69, still short of a passing grade. Petitioner then requested a formal administrative hearing and, as stated above, confined his challenge to his score on question 124. Question 124 involved computations for a detour roadway during a bridge replacement project. The question had four parts, thus requiring four computations (a-d). Segments of the detour were expressed in metric lengths (meters) in the question. A beginning station was described as 5 + 000.000. The question required that all computations be carried out to the appropriate significant digits. As described by the scoring plan for question 124, a perfect score was 10 points for an "exceptionally competent" response. The next highest score was 8 points for "more than minimum but less than exceptional competence," described as: Failure to provide answers to the required accuracy and a correct solution to requirements (a)-(d) OR an incorrect solution to one of the requests (a)-(d) with all answers within the required accuracy. Failure to provide the answers to the required accuracy will result in a deduction of two points at any level of scoring. (Respondent's Exhibit no. 8) The NCEES scorers awarded Petitioner a "6" for question 124, both initially and upon his requested review. Six points indicated "minimum competence," described as: Demonstrated a competent knowledge of reverse curves with a correct solution to at least two of the requirements meeting the required accuracy or a correct solution to at least three of the four possible requirements but answer(s) fail to meet the required accuracy. (Respondent's Exhibit no. 8) A solution is the methodology or process employed to reach a numerical result or answer in the examination problem, according to the competent credible testimony of Petitioner's experts. Those experts would have scored Petitioner's responses to question 124 as an "8" or "9". On rescoring, the NCEES score's comments in assigning a score of "6" were: SCORER'S COMMENTS: Requirement (a)-Failed to meet accuracy requirements of +/-0.015m. Requirement(b)-Decimal error was made. The station was in km and the curve length was in meters. Requirement(c)-Same error as in Requirement (b). No points were deducted for this error. Requirement (d)-Solution is correct. Minimum competence was shown by this solution. The grading process for the portions of the examination of which question 124 was a part was subjective within the guidelines provided by NCEES. Different scorers could award different points for the same answer. Petitioner's experts and Respondent's expert, all competent, credible witnesses, differed as to the score they would award. Petitioner's response to (a) of question 124 was not accurate within +/- 0.015m. That error alone would have resulted in a 2-point penalty. However, he also mis-read the initial stationing provided in the problem statement, resulting in inaccurate answers for (b) and (c). A correct solution generally includes the appropriate use of available data. In this case Petitioner's error in reading the correct station position was a technical error only and was caused by a misleading expression of the position in the question itself. His solutions to (a)-(d) were otherwise correct. In Florida, the only engineers who use the metric system are consultants for the Florida Department of Transportation (FDOT) and even that agency is phasing out the use of metrics. The use of metric measurements is not the standard of practice for Florida Professional Engineers. Out of the 30 projects that Respondent's expert has done since he was licensed, only one involved the use of the metric units. J. Keith Dantin, P.E., one of Petitioner's experts, has never in his 14 years of experience worked on a roadway or surveying problem in metric units. The Candidate Information Booklets provided by the Respondent to the examinees are conflicting and confusing. The February 1998 version states: "Examinees should be prepared to solve bridge problems using either metric or English units of measure. All other problems are in English units." (Petitioner's Exhibit No. 1). The October 1998 version states under the category Structural Design Standards: "All problems are in English units" (Respondent's Exhibit No. 3, boldface in original). When FDOT uses metric units it still expresses those units in English terminology. Thus, where question 124 positioned the beginning station at 5 + 000.000, the English translation would have been 50 + 00. It is evident that Petitioner read the station to be 5 + 00, missing one of the O's; if he had used the 5 + 000, or if the question had expressed the position at 50 + 00 (the English terminology used by the FDOT), all of Petitioner's answers would have been correct and his solutions would not have included the merely mechanical error of utilizing the wrong beginning station position. While he felt that he, personally, would understand the problem, Respondent's expert agreed there might be a bit of confusion. Respondent's expert was candid and credible but his professional experience was substantially less than Petitioner's experts, who also were candid and, on balance, more competent. Petitioner should have been scored an 8 on question 124. His solutions were basically correct and his answers were off merely due to the confusing expression of the beginning station. In real practice his error would have been caught before it reached the field and the error in no way betrayed a lack of fitness to practice as a professional engineer.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioner's challenge to his score on question 124 be sustained and that his score be upgraded by 2 points, from a "6" to "8". DONE AND ENTERED this 3rd day of November, 1999, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1999. COPIES FURNISHED: William H. Hollimon, Esquire Ausley & McMullen, P.A. 227 South Calhoun street Tallahassee, Florida 32302 Jeff G. Peters, Esquire Cedar Woods Office Center 1266 Paul Russell Road Tallahassee, Florida 32301 Natalie A. Lowe, Esquire Vice President for Legal Affairs Florida Board of Professional Engineers 1208 Hays Street Tallahassee, Florida 32301 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue for determination is whether Respondent negligently practiced engineering in the preparation of construction plans for a residential structure and airplane hanger.
Findings Of Fact At all times pertinent to these matters, Respondent has been a licensed engineer in the State of Florida, having been issued license number PE 37862. Respondent is the engineer of record for the residential and airplane hanger project (Rutman project). On Sheet 6 of 8 of the drawings prepared for the Rutman project, Respondent failed to reference sections or details found in the plan for the project. Specifically, Sheet 6 indicates the floor truss layout for the ground and second floors, but fails to indicate what the framing members are supported upon, a very significant fact, in that one who is reading the plan would not be instructed in how to construct that portion of the work. On Sheet 5 of 8, which indicates the layout of the framing members of the roof, no specific information is provided showing how to construct, support or connect the members and no reference is made to any other parts of the plans. Respondent's drawings fail to specify or indicate anywhere on the plans the proper reinforcing for the masonry column. On Sheet 2 of 2 - Hanger, and on Sheet 1 of 3 - Floor Plan, Respondent has called for a 24-inch by 24-inch reinforced masonry column that supports a W24 x 55 Steel I-beam that is 48 feet 8 inch long. There is no specification for column ties, which are reinforcing bar loops that are to be placed around the vertical steel within a column, as required by the American Concrete Institute's Code (ACI) provision 530. ACI 530 is used by all engineers in Florida that design masonry columns. These technical codes for concrete have been provided by ACI since 1904. ACI 530, Section 5.9.1.6(a), relating to lateral ties, provides that longitudinal reinforcement shall be enclosed by lateral ties at least 1/4 inch in diameter. Respondent's drawings fail to provide the required lateral ties. According to ACI 530, Section 5.9.1.4, vertical column reinforcement must not be less than .0025 times the nominal area of the column or approximately 1.44 square inches of steel. Respondent's drawing provides only 1.24 square inches of steel.
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 reprimanding Respondent for negligence in this matter, and placing him on probation for a period of two years. DONE AND ENTERED this 28th day of October, 2003, in Tallahassee, Leon County, Florida. S DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 2003. COPIES FURNISHED: David P. Rankin, Esquire The Law Offices of David P. Rankin, P.A. 14502 North Dale Mabry Boulevard, Suite 300 Tampa, Florida 33618 Douglas Sunshine, Esquire Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303 Nancy Campiglia, General Counsel Department of Business and Professional Regulations Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Natalie A. Lowe, Executive Director Board of Professional Engineers Department of Business and Professional Regulations 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267
The Issue The issues in this case are: (1) whether Respondent used a title that tended to indicate he was an active registered engineer in the State of Florida when he did not hold such registration; (2) whether Respondent violated an order previously issued by the Department; (3) and, if so, what penalty should be imposed.
Findings Of Fact Respondent, Frank V. Burianek, earned a Master of Science Degree in Civil and Structural Engineering from the University of Bratislava. In 1967, when Respondent earned this degree, the University of Bratislava was located in Bratislava, Czechoslovakia. However, since that time, the country of Czechoslovakia was dissolved and divided to form two new countries. The country in which the City of Bratislava is now located is the Slovian Republic. Respondent has worked in the construction business for about 30 years. During this time, Respondent worked as an engineer in Africa and Europe. At all times relevant to this proceeding, Respondent resided in Pinellas County, Florida. After moving to the area, Respondent made inquiries concerning how he could become a licensed or registered engineer in the State of Florida. After considering the matter, however, Respondent decided that he would not pursue applying for and obtaining a license to practice engineering in the State of Florida. Instead, Respondent chose to become a home inspector. In Florida, there is no requirement that individuals who work as home inspectors be licensed. Moreover, neither the home inspection business, nor its employees, are regulated by the State of Florida. According to a flyer distributed by Respondent, he began conducting home inspections in the Pinellas County area in 1992. The flyer stated in relevant part the following: Hi, my name is Frank Burianek. I am a Civil and Structural Engineer. I have thirty years experience in the construction industry. I have been successfully completing Home Inspections in this area since 1992. You might have used me before, seen my marketing, or heard how I saved your colleague's deal. I want to offer you and your colleagues the best service, but I need your professional opinion . . . your advice. And here is where I need your help. You have obviously used a number of inspectors in the past and you can help me be the best one. Don't worry. I have never killed a deal. On the contrary. As there are few inspectors eagerly killing some deals, I have been called on a number of occasions for Engineer's re-inspection. On October 27, 1998, a letter of complaint, which included a copy of Respondent's flyer, was filed with the Department. The letter of complaint, which appeared to be from the president of a company located in Spring Hill, Florida, that provided construction inspections consultation, indicated that Respondent did not list his license number on the flyer. The Department assigned the complaint described in paragraph 6 above as DBPR Case No. 98-21925. In a letter from the Department, Respondent was advised that a complaint had been filed alleging that Respondent "acted in the capacity of an ENGINEER without being duly licensed, a business that requires licensure in the State of Florida." The letter further stated that "this unlicensed practice is a criminal offense for which [Respondent] may be criminally prosecuted." The Department's investigation of DBPR Case No. 98-21925 included reviewing Department records and Respondent's flyer and written response to the Department, interviewing Respondent, and conferring with Department staff. During the course of the investigation, Respondent's flyer was reviewed by the contract administrator for the engineering board. After the contract administrator completed her review of the flyer, she wrote an e-mail to the Department's investigator regarding recommended changes that could be made to Respondent's flyer to correct the problem raised in the complaint. The e-mail, dated January 8, 1999, stated in part the following: I've read the flyer. Suggest to Mr. Burianek that he change the second sentence to the following: "I hold a Master Degree in Civil & Structural Engineering from University." If it is a foreign university, listing the city, state and or country might be helpful too! The way it is currently written implies or "tends to indicate" that he holds an active registration as a licensed engineer when he does not. The e-mail described in paragraph 10 was referred to in the Department's Investigative Report of DBPR Case No. 98-21925. According to the Investigative Report, the engineering board's contract administrator recommended that Respondent "change the second sentence on the flyer and add credentials." During the investigation of DBPR Case No. 98-21925, Respondent indicated that he was a civil and structural engineer because he had a master's degree in that field from the University of Bratislava. Respondent also indicated to the investigator that he was working as a home inspector and never intended that the flyer indicate he was licensed or registered as a professional engineer by the State of Florida. Based on the custom and practice in Europe, as a result of Respondent's obtaining a graduate degree in civil and structural engineering, his title was engineer. On January 13, 1999, the Department issued a Notice to Cease and Desist in DBPR Case No. 98-21925. The Notice to Cease and Desist, which ordered Respondent to "Cease and Desist from the unlicensed and illegal practice of Engineering," provided in relevant part the following: You are hereby notified that the following specifically described conduct constitutes the unlicensed practice of contracting by yourself: * * * Advertising in the capacity of an Engineer without being duly licensed. Company advertisement indicates that SUBJECT is holding himself as a Civil and Structural Engineer without being licensed. Subject is in violation of F.S. 471.031(1)(a). You are hereby advised that under Chapter 471.031 of the Florida Statutes, only persons or firms licensed by the Florida Engineering Board may hold himself or advertise as an Engineer. * * * You are hereby ORDERED to immediately CEASE AND DESIST from the unlicensed practice of Engineering in the State of Florida. You are further notified that under Section 455.228, Florida Statutes, a fine of up to $5000 may be imposed on any person engaging in the unlicensed practice of Engineering. On or about January 13, 1999, Respondent met with Department staff regarding his flyer. At that meeting, Department staff advised Respondent that although he had a master's degree in civil and structural engineering, because he was not licensed or registered as a professional engineer in the State of Florida, he could not simply refer to himself as an engineer. Rather, he also had to indicate that he had a degree in civil and structural engineering and the name and location of the university where he obtained the degree. The flyer, which was the basis for the complaint in DBPR Case No. 98-21925, had stated only that Respondent was a civil and structural engineer, but made no mention of his educational credentials. However, based on the information the Department gave to Respondent, he modified his initial flyer to include the fact that he had a master's degree with distinction from the University of Bratislava in Europe. Additionally, in the modified version of the flyer, Respondent deleted the reference to his being called to conduct an "Engineer's re-inspection." Rather, the revised flyer stated that Respondent had been called on a number of occasions for a "re-inspection." In the revised flyer, Respondent made the following two changes: I am a Civil and Structural Engineer (Master's Degree with distinction from University of Bratislava - Europe). * * * As there are few inspectors eagerly killing some deals, I have been called on number of occasions for a re-inspection. On or about January 13, 1999, Respondent provided the Department with an affidavit and a copy of the revised flyer. In the affidavit, Respondent stated that he did not intend to deceive the public and had changed the flyer pursuant to the Department's instructions and recommendations. The revised flyer was reviewed and approved by the Department. On January 24, 1999, after the Department reviewed Respondent's affidavit and revised flyer, it issued a Closing Order. The Closing Order found that probable cause existed to believe that Respondent violated Chapter 471, Florida Statutes, and noted that the Department had issued a Notice to Cease and Desist to him. Finally, the Closing Order stated that because "the unlicensed activity" had ceased, the case would be closed without further prosecution. On or about June 8, 2000, the Florida Engineers Management Corporation received a complaint against Respondent. Included with the letter of complaint was a letter dated October 23, 1996, that appeared to be from Respondent to someone for whom he had performed an inspection. This complaint was written on stationery with the letterhead of Advanced Building Inspections, Inc., St. Petersburg, Florida. The complaint referred to in paragraph 21 stated that the October 23, 1996, letter attached thereto was documentation of a "past structural inspection." The complaint further alleged that Respondent, whose name appeared on the letterhead of the October 23, 1996, letter and who appeared to have signed the letter, was not in the Department's computer. The implication was that Respondent was not a registered or professional engineer in the State of Florida. The Department took no action against Respondent as a result of the allegations in the June 8, 2000, complaint. However, during the course of the Department's investigation of that complaint, the Department requested that Respondent provide a copy of his current business stationery and business card. On or about October 25, 2000, Respondent provided to the Department the documents it had requested as a part of its investigation of the June 2000 complaint filed against Respondent. In addition to sending the requested documents to the Department, Respondent also sent a letter which stated that the Department had advised him some time ago to "include the city/place of my university with my qualification." In referring to his letterhead and business card, Respondent wrote, "As you can see, I have complied with this request, whenever, I refer to my engineering degree." Finally, Respondent stated that his business cards were printed about eight years ago and that because he does not use them often, "instead of wasting the old ones and printing new ones," he had added the requested information by hand. The address, telephone and fax numbers, and e-mail address were inscribed on the letterhead of the stationery provided to the Department by Respondent. Also, inscribed on the letterhead just above this information was the following: Frank V. Burianek, MSC, MBA Civil and Structural Engineer (Bratislava) As requested, Respondent also provided the Department with one of his business cards. In the center of the business card, in all capital letters and in bold print was "HOME INSPECTION." In the lower left corner of the business card was the following: Frank Burianek MSC, MBA Civil and Structural Engineer (Bratislava) Respondent's name, educational degrees earned, and "Civil and Structural Engineer," were inscribed on Respondent's business card. "(Bratislava)" was hand-written just below the words, "Civil and Structural Engineer." Bratislava is the name of the university where Respondent earned his Master of Science Degree and the name of the city where the university is located. Because the name and location of the university were the same, rather than writing, "Bratislava, Bratislava," Respondent wrote only "Bratislava." Respondent had seen business cards of other individuals that had only included the name of the university where they had earned their degrees. Based on this and the Department's prior instructions, Respondent believed that the addition of "Bratislava" to his letterhead and business cards was acceptable, particularly in view of the fact that the name of the university and the city where it is located are identical. In the lower right-hand corner of the business card, Respondent's telephone number, including the area code of "813", was inscribed. On the business card, Respondent had crossed out the "813" area code and had written above it the new area code of "727." In the January 13, 1999, meeting with Department staff, Respondent was specifically advised how his flyer should be modified so as to avoid the perception that he was a professional engineer, licensed by the State of Florida. Based on Respondent's understanding of the Department's instructions given at that meeting and its approval of his revised flyer, Respondent reasonably believed that he could use the title, "Civil and Structural Engineer" because he had earned a degree in that area, if he included his educational credentials. In light of the Department's instructions and recommendations, Respondent revised the flyer. In that revised version, Respondent stated, "I am a Civil and Structural Engineer (Master's Degree with distinction, from University of Bratislava - Europe)." The Department approved this revised version of the flyer. The instructions and suggestions that the Department staff gave to Respondent in January 1999 specifically addressed the flyer that was the subject of the complaint filed in DBPR Case No. 98-21925. However, Respondent reasonably assumed that the substance of those instructions and/or recommendations should apply to his other business documents and advertisements. The language on Respondent's letterhead and business card complies with the instructions and recommendations given to him by the Department on or about January 13, 1999, and do not tend to indicate that Respondent is a registered engineer in the State of Florida.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner, the Department of Business and Professional Regulation, enter a final order that dismisses Counts One, Two, Three, and Four of the Administrative Complaint. DONE AND ENTERED this 18th day of May, 2001, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 18th day of May, 2001. COPIES FURNISHED: Frank V. Burianek Post Office Box 4563 Seminole, Florida 33775 David K. Minacci, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Natalie A. Lowe, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 1208 Hays Street Tallahassee, Florida 32301 Doug Sunshine, Vice President for Legal Affairs Florida Engineers Management Corporation 1208 Hays Street Tallahassee, Florida 32301 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that no action be taken against the Respondent, John R. Meyer. DONE and ORDERED this 19th day of December, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1979. COPIES FURNISHED: Michael E. Egan, Esquire 217 South Adams Street Post Office Box 1386 Tallahassee, Florida 32302 Ronald A. Cyril, Esquire 2070 Ringling Boulevard Sarasota, Florida 33577 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. CASE NO.: 79-1355 JOHN J. MEYER, CB C012853 Respondent. /
