The Issue The issue is whether Petitioner is qualified for certification of qualification for licensure as a professional engineer by endorsement, pursuant to section 471.015(3), Florida Statutes.
Findings Of Fact In 1982, Petitioner earned a bachelor's degree in construction engineering from Florida International University. Petitioner does not have a doctorate in engineering. On June 24, 2009, the state of North Carolina issued Petitioner a license as a professional engineer. This is his only professional engineer license. Because Petitioner had over 20 years' progressive experience on engineering projects acceptable to the North Carolina State Board of Examiners for Engineers and Surveyors, he was eligible for a professional engineer license by, among other things, passing Part II of the National Council for Examiners of Engineering and Surveying (NCEES), which is also known as the Principals and Practices Examination. Due to his experience, North Carolina did not require Petitioner to pass Part I of the NCEES, which is also known as the Fundamentals Examination. By application dated August 27, 2009, Petitioner applied for Florida licensure by endorsement as a professional engineer. Ultimately, Respondent declined to certify to the Florida Engineers Management Corporation the application for licensure by endorsement because Petitioner had not passed Part I of the NCEES. Except for not having passed Part I of the NCEES examination (or, if applicable, not having met one of the other two alternatives set forth in section 471.015(5)(a), as discussed in the Conclusions of Law), Petitioner otherwise meets the education and experience requirements set forth in section 471.013(1), Florida Statutes, for certification for licensure by endorsement.
Recommendation It is RECOMMENDED that the Board of Professional Engineers enter a final order denying Petitioner's application for certification of qualification for licensure by endorsement. DONE AND ENTERED this 11th day of July, 2011, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 11th day of July, 2011. COPIES FURNISHED: Michael Todd Flury, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Kristine M. Johnson, Esquire 10620 Griffin Road, Suite 106-B Cooper City, Florida 33328 Carrie A. Flynn, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 John Rimes, Esquire Chief prosecuting Attorney Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The ultimate issue in this proceeding is whether proposed Florida Administrative Code Rule 61G15-21 is an invalid exercise of delegated legislative authority.
Findings Of Fact Florida Administrative Code Rule 61G15-21.004, in relevant part, states: The criteria for determining the minimum score necessary for passing the Engineering Fundamentals Examination shall be developed through the collective judgment of qualified experts appointed by NCEES to set the raw score that represents the minimum amount of knowledge necessary to pass the examination. The judges shall use a Modified Angoff Method in determining the minimally acceptable raw score necessary to pass the Fundamentals of Engineering Examination. Using the above mentioned Modified Angoff Method, the judges will indicate the probability that a minimally knowledgeable Fundamentals of Engineering examinee would answer any specific questions correctly. The probability of a correct response is then assigned to each question. Each judge will then make an estimate of the percentage of minimally knowledgeable examinees who would know the answer to each question. The totals each of the judges is added together and divided by the number of judges to determine the overall estimate of the minimum standards necessary. The minimum number of correct answers required to achieve a passing score will take into account the relative difficulty of each examination through scaling and equating each examination to the base examination. The raw score necessary to show competence shall be deemed to be a 70 on a scale of 100. A passing grade on Part Two of the examination is defined as a grade of 70 or better. The grades are determined by a group of knowledgeable professional engineers, who are familiar with engineering practice and with what is required for an applicable engineering practice and with what is required for an applicable engineering task. These professional engineers will establish a minimum passing score on each individual test item (i.e., examination problem). An Item Specific Scoring Plan (ISSP) will be prepared for each examination item based upon the NCEES standard scoring plan outline form. An ISSP will be developed by persons who are familiar with each discipline including the item author, the item scorer, and other NCEES experts. On a scale of 0-10, six (6) will be a minimum passing standard and scores between six (6) and ten (10) will be considered to be passing scores for each examination item. A score of five (5) or lower will be considered an unsatisfactory score for that item and examinee will be considered to have failed that item. To pass, an examinee must average six (6) or greater on his/her choice of eight (8) exam items, that is, the raw score must be forty- eight (48) or greater based on a scale of eighty (80). This raw score is then converted to a base 100 on which, as is noted above, a passing grade will be seventy (70). The proposed changes to Florida Administrative Code Rule 61G15-21.004, in relevant part, state: The passing grade for the Engineering Fundamentals Examination is 70 or better. The criteria for determining the minimum score necessary for passing the Engineering Fundamentals Examination shall be developed through the collective judgment of qualified experts appointed by NCEES to set the raw score that represents the minimum amount of knowledge necessary to pass the examination. The judges shall use a Modified Angoff Method in determining the minimally acceptable raw score necessary to pass the Fundamentals of Engineering Examination. Using the above mentioned Modified Angoff Method, the judges will indicate the probability that a minimally knowledgeable Fundamentals of Engineering examinee would answer any specific questions correctly. The probability of a correct response is then assigned to each question. Each judge will then make an estimate of the percentage of minimally knowledgeable examinees who would know the answer to each question. The totals each of the judges is added together and divided by the number of judges to determine the overall estimate of the minimum standards necessary. The minimum number of correct answers required to achieve a passing score will take into account the relative difficulty of each examination through scaling and equating each examination to the base examination. The raw score necessary to show competence shall be deemed to be a 70 on a scale of 100. The passing grade for the Principles and Practice Examination is 70 or better. A passing grade on Part Two of the examination is defined as a grade of 70 or better. The grades are determined by a group of knowledgeable professional engineers, who are familiar with engineering practice and with what is required for an applicable engineering practice and with what is required for an applicable engineering task. These professional engineers will establish a minimum passing score on each individual test item (i.e., examination problem). An Item Specific Scoring Plan (ISSP) will be prepared for each examination item based upon the NCEES standard scoring plan outline form. An ISSP will be developed by persons who are familiar with each discipline including the item author, the item scorer, and other NCEES experts. On a scale of 0-10, six (6) will be a minimum passing standard and scores between six (6) and ten (10) will be considered to be passing scores for each examination item. A score of five (5) or lower will be considered an unsatisfactory score for that item and examinee will be considered to have failed that item. To pass, an examinee must average six (6) or greater on his/her choice of eight (8) exam items, that is, the raw score must be forty- eight (48) or greater based on a scale of eighty (80). This raw score is then converted to a base 100 on which, as is noted above, a passing grade will be seventy (70). Petitioner resides in Tampa, Florida. On April 11, 2003, Petitioner took a national examination that Petitioner must pass to be licensed by the state as a professional engineer. On July 1, 2003, Petitioner received a letter from the Board advising Petitioner that he had received a failing grade on the examination. On July 2, 2003, Petitioner unsuccessfully requested the raw scores on his examination from a representative of the National Council of Examiners for Engineering and Surveying (NCEES). The NCEES is the national testing entity that conducts examinations and determines scores for the professional engineer examination required by the state. On July 9, 2003, Petitioner submitted a formal request to the Board for all of the raw scores related to Petitioner "and all past P.E. Exams that the Petitioner had taken." A representative of the Board denied Petitioner's request explaining that the raw scores are kept by the NCEES and "it is not their policy to release them." The Board's representative stated that the Board was in the process of adopting new rules "that were in-line with the policies of the NCEES." On July 31, 2003, Petitioner requested the Board to provide Petitioner with any statute or rule that authorized the Board to deny Petitioner's request for raw scores pursuant to Section 119.07(1)(a), Florida Statutes (2003). On the same day, counsel for the Board explained to Petitioner that the Board is not denying the request. The Board is unable to comply with the request because the Board does not have physical possession of the raw scores. Petitioner and counsel for Respondent engaged in subsequent discussions that are not material to this proceeding. On August 6, 2003, Petitioner requested counsel for Respondent to provide Petitioner with copies of the proposed rule changes that the Board intended to consider on August 8, 2003. On August 27, 2003, Petitioner filed a petition with the Board challenging existing Florida Administrative Code Rule 61G15-21.004. The petition alleged that parts of the existing rule are invalid. Petitioner did not file a challenge to the existing rule with DOAH. The Petition for Hearing states that Petitioner is filing the Petition for Hearing pursuant to Subsections 120.56(1) and (3)(b), Florida Statutes (2003). However, the statement of how Petitioner's substantial interests are affected is limited to the proposed changes to the existing rule. During the hearing conducted on January 29, 2004, Petitioner explained that he does not assert that the existing rule is invalid. Rather, Petitioner argues that the Board deviates from the existing rule by not providing examinees with copies of their raw scores and by failing to use raw scores in the determination of whether an applicant achieved a passing grade on the exam. Petitioner further argues that the existing rule benefits Petitioner by purportedly requiring the Board to use raw scores in the determination of passing grades. The elimination of that requirement in the proposed rule arguably will adversely affect Petitioner's substantial interests. The Petition for Hearing requests several forms of relief. The Petition for Hearing seeks an order granting Petitioner access to raw scores, a determination that Petitioner has met the minimum standards required under the existing rule, and an order that the Board grant a license to Petitioner. The Petition for Hearing does not request an order determining that the proposed rule changes constitute an invalid exercise of delegated legislative authority.
The Issue The single issue for determination is whether Petitioner is entitled to at least three more points on his response to question #121. If not, he has failed the examination.
Findings Of Fact Kenneth A. Carper graduated summa cum laude with a bachelor's degree from the University of Central Florida. In the nine years since graduation he has worked for an engineering firm primarily in the area of drainage design. Question #121 is the type of problem he deals with daily. The ultimate objective of the question is to determine whether the flow of an open channel with given specifications is subcritical or supercritical. The question required the computation of the channel's critical depth and normal depth. In the hypothetical situation described by the question, certain extraneous information was given. An appropriate answer required that this "red herring" be ignored. The ISSP is a standardized grading device by which a person subjectively grading a problem will consistently apply a score based upon specified types and numbers of deficiencies. The intent is to reduce the chance of over-leniency or an overly strict approach by different graders. The ISSP developed by the National Council of Engineering Examiners for question #121 provides in pertinent part: 10. QUALIFIED: All CATEGORIES satisfied, correct solution, well organized, all relevant ASPECTS fully addressed. Correct approach; numerical answers correct within rounding errors; conclusion correct; adequate written records. All parts are of equal weight (3 parts). 9. QUALIFIED: All CATEGORIES satisfied, correct solution but exces- sively conservative in choice of working values; or presen- tation lacking in completeness of equations, diagrams, orderly steps in solution, etc. All correct, as in 10 above, except for a single math/units error; or inadequate written record. 8. QUALIFIED: All CATEGORIES satisfied, errors attributable to misread table or calculating devices. Errors would be corrected by routine checking. Results reasonable, though not correct. All correct, as in 10 above, except for multiple math/units errors; or inadequate written record; or in combination. 7. QUALIFIED: All CATEGORIES satisfied. Obtains solution, but chooses less than optimum approach. Solution is awkward but reasonable. Same as 8 above, except for more gross errors; or in combination; or a single part of three parts required completely wrong or missing, with the other two parts correct. 6. QUALIFIED: All CATEGORIES satisfied, applicant demonstrates minimally adequate knowledge in all relevant ASPECTS of the item. Multiple math/units/records errors; or in combination; or one part completely missing or wrong, with other errors; or in combination. (Joint Exhibit 1) The grader of Carper's examination did not testify, but provided notations on the answer sheet. The solution required selection of an appropriate formula, which Carper did; it also required a trial and error mathematical computation of the value of "y." In the first part of the question Carper found "y" to be "... between 9.2 and 9.3, say 9.3'." The grader crossed out this answer with the notation,-- "not an engineering answer-Finish iteration to a close enough' final value." The grader's answer was 9.24. In the second part of the question, Carper indicated "y" was "... between 6.8 and 7.0, say 7.0'." The grader's answer was 6.99, and similar notations, were made, "not an engineering answer. Finish the iteration." It is apparent that the grader felt that the solution should be carried out to the nearest hundredth place. Yet, in a very similar question (#421), also requiring computation of normal depth, Carper's answer, 4.7' was marked "OK", and he received the full 10 points for his solution. Nothing in the instructions specifically requires a solution to the nearest hundredth. This is left to the judgement of the engineer. "Real world" engineering practice would not require a solution to the nearest hundredth place. The design of a large open channel is substantially less precise than the design of a bridge or multi-story building. In hydraulics, the practice is often to round up, for example, from a 9.8 to 10, as a conservative measure. It is also common to use estimates; for example, the roughness coefficient (resistance of the channel walls) is a textbook figure, rather than one derived from the structure itself. Given the lack of precision inherent in the formula, the computation of value beyond the tenth place serves no valid purpose. The sample solution to #121 provided by the grader specifically states "ignore backwater curve." While Carper's solution does ignore the "red herring," his work sheet does not affirmatively note that he did. Respondent claims that the grader could not know whether the back water curve was properly ignored, or just overlooked. At worst, this minor deficiency constitutes an inadequate written record. The appropriate score, based on the ISSP table reflected in paragraph 4, above, is "9." Carper selected the proper formula, performed the mathematics and arrived at answers reflecting acceptable engineering practice. The descriptions of deficiencies for the scores of less than 9 do not apply to Carper's solution for this question. Respondent's expert conceded that the solution did not contain a mathematics error. In making these findings I have considered and weighed the opinions of the three experts who testified in this proceeding. Both experts presented by Petitioner were qualified, without objection, in the engineering fields of hydraulics, hydrology and water resource management. They both have over 30 years of extensive practical experience in those fields, and they both have lectured or taught in colleges and universities. The weight of their testimony is tempered by their personal knowledge of Petitioner for eight or nine years and by their knowledge of the score he needed to pass the examination. Nothing in the substance of their testimony, however, revealed a bias in favor of their colleague, and their testimony was considered candid and forthright. They would have scored #121 as "9" or "10". Respondent's expert, a consulting engineer, employed as an Associate Professor in the University of Florida Civil Engineering Department did not know Carper, nor was he advised of the score he would need to pass. He would have given Carper a "6" or "7" on question #121, but more likely a 7, based on Carper's failure to carry his answer to "three significant figures." This opinion was not adequately explained in terms of acceptable engineering practice, but rather was based on acceptance of the test grader's judgement. (Joint Exhibit #2, Deposition, p. 29) Respondent's expert was less qualified than Petitioner's experts. His primary experience as a consulting engineer has been in review of the work of others, rather than active design.
Recommendation Based upon the foregoing, it is hereby RECOMMENDED: That a Final Order be entered, awarding Kenneth Carper 9 points for question #121, thereby providing a passing grade for the engineering examination. DONE and RECOMMENDED this 29th day of February, 1988, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4979 The following constitute my rulings on the findings of fact proposed by the parties: Petitioner 1-5. Addressed in Background. 6-7. Adopted in paragraph #11. 8. Addressed in Background. Respondent Addressed in Background. Adopted in substance in paragraph #3. Adopted in paragraph #10. Adopted in substance in paragraph #10. Adopted in paragraph #9. Adopted in substance in paragraph #5. Rejected as unsubstantiated speculation. COPIES FURNISHED: Brian E. Currie, Esquire SANDERS, McEWAN, MIMS & MARTINEZ, P.A 108 East Central Boulevard Post Office Box 753 Orlando, Florida 32802-0753 H. Reynolds Sampson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Allen R. Smith, Jr. Executive Director Board of Professional Engineers Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neal, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Petitioner, Carlos Martinez Mallen, is an applicant for licensure by endorsement to become a professional engineer in the State of Florida. He filed his application for licensure with the Florida Board of Professional Engineers (hereinafter "Board") in January 1988, relying on the facts that he was licensed in Spain approximately 25 years ago and has approximately 30 years of experience as a professional engineer. The Board subsequently determined that he could not be considered for licensure by endorsement. Petitioner has never taken a licensing examination in the United States which is substantially equivalent to the examination required for licensure by Section 471.013, Florida Statutes, and described in Chapter 21H, Florida Administrative Code. Further, Petitioner has never been licensed in any state or territory of the United States, although he does hold a license to practice engineering in Spain. On the other hand, Petitioner's engineering experience record shows that he has considerable experience in the practice of engineering which would meet the additional experience requirements of Section 471.013, Florida Statutes. The Board, having determined that Petitioner does not qualify for licensure by endorsement, performed an analysis of Petitioner's application to determine whether his degree from the University of Madrid was an engineering degree which might qualify him to sit for the 1icensure examination and to ascertain if Petitioner could obtain licensure by that alternative method. An analysis was made by the Board's Education Advisory Committee to determine whether the curriculum for Petitioner's degree from the University of Madrid met the requirements of Rule 21H-20.006, Florida Administrative Code. This analysis was specifically directed to determine whether Petitioner's curriculum conformed to the criteria for accrediting engineering programs set forth by the Engineering Accreditation Commission of the Accreditation Board of Engineering and Technology, Inc., (hereinafter "ABET"). The analysis of Petitioner's degree shows that, when compared with ABET criteria, Petitioner's engineering education was deficient four semester hours in mathematics and included no courses in engineering design, sixteen semester hours of which are required by ABET criteria. Further, Petitioner's education included no computer application of engineering design programs, a mandated requirement by ABET standards. Petitioner has never taken any of these courses subsequent to receiving his degree in Spain. Petitioner's degree, rather than being an engineering degree, is the equivalent of a bachelor's degree in chemistry. Petitioner's degree is significantly deficient in required course areas, so that it does not meet the Board's criteria. Petitioner thus cannot be considered as an applicant for examination since in order to sit for the professional engineer examination in the State of Florida, one must have an engineering degree which meets standards acceptable to the Board. Finally, Petitioner's background was reviewed to determine whether he could be considered for licensure under a different provision for licensure by endorsement. Petitioner has never held a professional engineer registration or license from another State of the United States. The Board has never interpreted the word "state" found in the statutes and rules regulating the licensure of professional engineers in Florida to include foreign counties. Petitioner is not a graduate of the State University System. Petitioner did not notify the Department before July 1, 1984, that he was engaged in engineering work on July 1, 1981, and wished to take advantage of a temporary educational waiver. As a result of the Board's review of all avenues to licensure available to Petitioner, Petitioner's application was denied either to sit for the examination to become a professional engineer or to be licensed by endorsement, unless and until he meets the educational requirements to sit for the professional engineer examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application for licensure by endorsement and further finding that Petitioner's educational background does not meet the requirements necessary to take the examination to become licensed in the State of Florida. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of March, 1990. LINDA M. RIGOT 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 28th day of March, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-5973 Petitioner's proposed paragraphs numbered 0.00, .10, .20, .30, .40, .50, 1.10, 1.20, 2.20, 3.10, 3.20, 3.40, 3.60, 4.10, 4.11, 4.13, 5.00, 5.30, 5.40, 5.41, 5.50, 5.51, 5.52, 6.00, 6.10, 6.20, 6.21, 6.22, 6.23, 6.24, 6.25, 6.26, 7.00, 7.40, and 7.50 have been rejected as not constituting findings of fact but rather as constituting argument or conclusions of law. Petitioner's proposed paragraphs numbered 1.21, 3.00, 4.00, 7.10, 7.20, 730, 7.41, 7.42, and 7.43 have been rejected as being contrary to the weight of the evidence in this cause. Petitioner's proposed paragraphs numbered 1.22 and 2.10 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed paragraphs numbered 3.30, 3.50, 3.70, 4.12, 4.20, 5.10, 5.11, and 5.20 have been rejected as being irrelevant to the issues involved in this proceeding. Respondent's proposed findings of fact numbered 1-8 have been adopted either verbatim or in substance in this Recommended Order. COPIES FURNISHED: John J. Rimes, III, Esquire Office of Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32399-1050 Carlos Martinez Mallen 33C Venetian Way #66 Miami Beach, Florida 33139 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Rex Smith, Executive Director Department of Professional Regulation Board of Professional Engineers 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Petitioner is entitled to credit for his answers to Questions 34, 65, and 75 on the Fundamentals of Engineering portion of the engineering licensure examination administered on the morning of April 15, 2000, 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 April 15, 2000, as part of his effort to obtain a license to practice as an engineer intern in the State of Florida, Petitioner sat for the Fundamentals of Engineering Examination (Examination). This was a national multiple-choice examination developed and administered by the National Council of Examiners for Engineers and Surveyors (NCEES). The Examination was divided into two sessions: a morning session (AM Part), which tested "lower division subjects" (that is, "the first 90 semester credit hours . . . of engineering course work for a typical bachelor engineering degree program"), and an afternoon session (PM Part), which tested "upper division subjects" (that is, "the remainder of the engineering course work"). Questions on the AM Part were worth one raw point each. Questions on the PM Part were worth two raw points each. The NCEES provided candidates taking the Examination with a Fundamentals of Engineering, Discipline Specific, Reference Handbook (Reference Handbook) that they were allowed to refer to during the Examination. The Reference Handbook, as noted in its Foreword, "contain[ed] only reference formulas and tables; no example problems [we]re included." Petitioner received a total raw score of 104 on the Examination (54 for the AM Part and 50 for the PM Part). According to the NCEES's Score Conversion Table, a raw score of 104 converted to a score of 69. To pass the Examination, a converted score of 70 (or 107-109 raw points) was needed. Accordingly, Petitioner fell three raw points short of receiving a passing score. Petitioner has formally requested that the grading of his answers to Questions 34, 65, and 75 of the AM Part be reviewed. He received no credit for any of these answers. Had these answers been deemed correct (and he received one raw point for each answer), he would have passed the Examination (with a converted score of 70). Question 34 of the AM Part was a clear and unambiguous multiple-choice question that covered subject matter (integral calculus) with which Petitioner and the other candidates should have been familiar. There was only one correct answer to this question, and it was among the responses from which the candidates had to choose. Petitioner chose another answer that was clearly incorrect because it represented a particular solution or expression, and not the "general expression" (representing all solutions) called for by the question. He therefore appropriately received no credit for his answer. Questions 65 and 75 of the AM Part, like Question 34, were clear and unambiguous multiple choice questions that covered subject areas (centroids and thermodynamics, respectively) with which Petitioner and the other candidates should have been familiar. Each of these questions, again like Question 34, had only one correct answer that was listed among the choices from which the candidates had to choose. To answer each question correctly, the candidates had to use a formula that was set forth in the Reference Handbook (on page 21 in the case of Question 65 and on page 46 in the case of Question 75). Petitioner selected neither the correct answer to Question 65, nor the correct answer to Question 75, and therefore was not entitled to any credit for his answers to these questions.
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 Fundamentals of Engineering portion of the April 15, 2000, engineering licensure examination. DONE AND ENTERED this 15th day of November, 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 15th day of November, 2000.
The Issue The issue in this case is whether Respondent, Batumane Shad Banto Kasanganay (Respondent), committed the offenses alleged in an Administrative Complaint issued June 24, 2008, and, if so, the penalty that should be imposed.
Findings Of Fact Petitioner, as the Commissioner of the Florida Department of Education, is responsible to investigate and prosecute complaints against persons who hold a Florida Educational Certificate who are alleged to have violated the provisions of law related to the education profession in the State of Florida. See §§ 1012.79 and 1012.795, Fla. Stat. (2008). At all times material to the allegations of this case, Respondent has held Florida Educator's Certificate No. 752042, covering mathematics, that is valid through June 30, 2010. From 1998 through the 2007 school year, Respondent was employed by the Palm Beach County School District as a math teacher at Bak Middle School (Bak). During his tenure at Bak, Respondent's students performed well on the Florida Comprehensive Assessment Test (FCAT) and the school became favorably ranked for its math achievement. Additionally, Respondent's students improved FCAT scores in mathematics over the course of his time with them. Prior to working with the students at Bak, Respondent worked in Okeechobee, Florida, and was teacher of the year one of the two years he taught at the Eckerd Learning Center, a school for juvenile offenders. Prior to the conduct complained of in this case, Respondent had no prior disciplinary concerns. Respondent had received satisfactory evaluations every year. Respondent, or "Mr. Kas" as he is also referred to in the record, came to the United States from central Africa. He spoke no English on his arrival but had received a degree in mathematics and physics from the Institute Alingea Studies. After moving to North Carolina, Respondent received a degree from Western Carolina University in Cullowhee, North Carolina, and became a United States citizen. Respondent travels under a S. passport and, at the time of the hearing in this cause, resides in Palmerston North, New Zealand. Respondent created a corporation named Mr. Kas, Inc., and opened "Mr. Kas Learning Center" in 2000 in order to better assist students with math anxiety to learn and improve mathematics skills. The learning center was a private business not affiliated with the Palm Beach County Schools where Respondent taught or tutored students from elementary school age through doctoral candidates to improve their math skills and to perform favorably on examinations. Respondent operated this "for profit" entity and received payment from those who participated in the after school program. The record is not clear as to whether Mr. Kas, Inc., was formally "doing business as" the "Mr. Kas Learning Center," but it is definite that only Respondent individually committed the acts complained of in the instant case. That is to say, all comments that were alleged to have been uttered were made by Respondent. No other individuals who may have attended or been associated with Mr. Kas, Inc., or the "Mr. Kas Learning Center" were involved. The alleged offending behavior was attributed solely to Respondent. None of the alleged behavior occurred during Respondent's work day at Bak. Respondent was a member of the Palm Beach County Classroom Teachers Association (CTA). It was customary for the CTA to provide workshops for its members and on several occasions Respondent was asked to conduct workshops. Additionally, Respondent assisted new teachers, members of the CTA, to pass the state certification examination. Respondent tutored/taught CTA members for compensation to pass the General Knowledge math portion of the certification examination. These sessions were generally group endeavors and Respondent was compensated based upon the number of persons in attendance. In addition to the foregoing, Respondent also worked with firefighters, police, nurses, and others who were required to pass a math competency section as part of their professional testing. Monday through Friday Respondent opened his learning center in the afternoon after school for school children. During this time he worked with students to complete their homework, prepare for tests, and study for exams. On Saturdays Respondent used the learning center to conduct group sessions to work with adults and professionals. The Department of Education publishes a preparation guide to address the General Knowledge test that must be passed for teacher certification in Florida. Respondent purchased the guide and used it and other questions he collected to develop a learning tool for persons who would take the Florida Teachers Certificate Examination and use his learning center for help to pass the math portion of the exam. Jennifer Tomko was a first year middle school teacher in Palm Beach County, Florida, during the 2006/2007 school year. Ms. Tomko applied for her teaching certificate with the Department of Education and was required to pass the General Knowledge examination, including the math section. On two occasions Ms. Tomko did not pass the math section. On her third attempt to pass, Ms. Tomko became distraught as she believed she had again failed to achieve a passing score on the math test. A test proctor observed Ms. Tomko's demeanor and suggested that she consider attending one of Respondent's tutor sessions at his learning center. Ms. Tomko had a "mentor teacher" at her school who had been tutoring her for several months. The mentor, Judith Warren, encouraged Ms. Tomko to attend Respondent's session. To that end, Ms. Tomko signed up for Respondent's Saturday math help session. When Ms. Tomko met Respondent and told him of her prior failed attempts to pass the math section of the exam, he assured her that with his help, she would pass the test. He remarked that it was her "lucky day." As part of his guarantee that she would pass the math section, Respondent provided Ms. Tomko with key phrases of the actual test questions along with the correct answer for the question. Respondent instructed Ms. Tomko to make flash cards to include the key phrase of the questions and to look for the answers he provided. Since Ms. Tomko did not have index cards with her, she used sheets of paper to make columns. The columns had the "key phrase" and the "answers" provided by Respondent. When Ms. Tomko got home, she copied the columns of information onto cards. The front of the card with the "key phrase" as provided by Respondent, the reverse of the card held the "answer." Respondent also gave Ms. Tomko a handout that included information regarding computing the distance between two cities. The information denoted in Respondent's handout contained real questions from the Florida teacher examination. These "live" questions were verbatim from the test and were sufficient to demonstrate Respondent had "collected" real information from the teacher examination in order to prompt his students with the correct answers. In fact, Respondent told Ms. Tomko to call him immediately after the test to let him know of any difficult questions. Respondent represented that with information regarding difficult questions, he could better assist future applicants taking the exam. Presumably, this is how Respondent was able to assemble the information he provided to Ms. Tomko and to assure her that she would pass the math examination. Obviously, by collecting real questions from test participants Respondent would be able provide answers that would allow success on the exam. According to Ms. Tomko during the tutoring session she attended, Respondent did not teach math strategies or formulas for completing the math section of the examination. Instead, Respondent offered questions (identified by the key phrases) and answers that the participants were to memorize. For example, if the question included something about a "toy in box" the answer was "13 feet." Actual examples of the test questions (or key phrases) along with the answers provided by Respondent are omitted here as they are confidential as a matter of law. See § 1008.23, Fla. Stat. (2008). Nevertheless, the key phrases and answers provided by Respondent were, in fact, actual questions from the math section of the examination. Respondent did not consider his assistance "cheating." Ms. Tomko, however, felt uncomfortable about memorizing the answers based upon the key phrases. According to Ms. Tomko, whose testimony has been deemed credible, Respondent instructed her to take the computer and not the written version of the test. Respondent told Ms. Tomko to memorize the card information previously described and to not finish too quickly in order to avoid suspicion. Ms. Tomko felt Respondent's words and behavior were contrary to her moral code and violated her responsibility as an educator to be a role model for students. Because she was offended, the evening after the Saturday tutor session with Respondent, Ms. Tomko contacted her mentor who then encouraged her to take the matter to their principal. The principal reported the case to the Department of Education and the instant administrative action ensued. The flash cards produced by Ms. Tomko contained real, "live" questions from the Florida Educational Certificate examination. All of the flash cards were constructed using the information from Respondent. DOE is charged with the responsibility of maintaining the examination questions and answers in a secure manner. The questions and answers are confidential and are not to be made public. The development of the examination questions cost over $300,000 and involved the efforts of DOE staff as well as private contractors who assist in the preparation of test questions. The examination is maintained in a locked vault with limited access to even DOE employees. Although test questions may be circulated indefinitely, different versions of the examination with different questions included are developed so that the same exact version is not repeatedly given. Nevertheless, by circulating the "key phrase" of a question with its answer, it would be possible for someone to circumvent the version differences among the exams since the questions themselves would remain the same. Once the instant case was referred to the DOE, Respondent became aware that he was under investigation. Respondent resigned his position with the Palm Beach County School District at the end of the 2006/2007 school year. Respondent's learning center was also closed near that time. Subsequently, Respondent left the country and currently resides in New Zealand. Respondent's claims regarding the closure of his learning center, the loss of records pertaining to the tutoring efforts made on behalf of CTA members, and other conflicting stories pertinent to this case result in the inescapable conclusion that Respondent was not forthright regarding his learning center and the materials and information he personally supplied to persons taking the teacher certification examination. In this case Respondent was charged with the following statutory violations: COUNT 1: Respondent is in violation of Section 1008.24(1), Florida Statutes, in that Respondent knowingly and willfully violated test security rules adopted by the State Board of Education for mandatory tests administered by or through the State Board of Education or Commissioner of Education to students, educators, or applicants for certification or administered by school districts pursuant to s. 1008.22. COUNT 2: Respondent is in violation of Section 1008.24(1)(a), Florida Statutes, in that Respondent gave examinees access to test questions prior to testing. COUNT 3: Respondent is in violation of Section 1008.24(1)(b), Florida Statutes, in that Respondent copied, reproduced, or used in any manner inconsistent with test security rules all or any portion of any secure test booklet. COUNT 4: Respondent is in violation of Section 1008.24(1)(d), Florida Statutes, in that Respondent made answer keys available to examinees. COUNT 5: Respondent is in violation of Section 1008.24(1)(g), Florida Statutes, in that Respondent participated in, directed, aided, counseled, assisted in, or encouraged any of the acts prohibited in this section. COUNT 6: Respondent is in violation of Section 1012.795(1)(c), Florida Statutes, in that Respondent has been guilty of gross immorality or an act involving moral turpitude. COUNT 7: Respondent is in violation of Section 1012.795(1)(i), Florida Statutes, in that Respondent has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules. Additionally, Respondent was charged with the following rule violations: COUNT 8: The allegations of misconduct set forth herein are in violation of Rule 6A- 10.042(1)(b), Florida Administrative Code, in that Respondent revealed, copied or otherwise reproduced tests or individual test questions. COUNT 9: The allegations of misconduct set forth herein are in violation of Rule 6A- 10.042(1)(e), Florida Administrative Code, in that Respondent provided answer keys to examinees. COUNT 10: The allegations of misconduct set forth herein are in violation of Rule 6A- 10.042(1)(f), Florida Administrative Code, in that Respondent has participated in, directed, aided, counseled, assisted in, or encouraged an activity which could result in the inaccurate measurement or reporting of examinees' achievement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner and the Education Practices Commission enter a Final Order that suspends Respondent's teaching certificate for a period not to exceed one year, imposes an administrative fine in an amount not less than $2,000.00, and requires Respondent to take remedial instruction regarding the ethics applicable to educators in the State of Florida at his own expense before his certification can be reinstated. DONE AND ENTERED this 19th day of June, 2009, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 2009. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Joan Stewart, Esquire Florida Education Association 300 East Park Avenue Tallahassee, Florida 32301 Charles T. Whitelock, Esquire Whitelock & Associates, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316
The Issue The issue to be resolved is whether Petitioner is entitled to additional credit for her response to question nos. 122 and 222 of the civil engineering examination administered on October 31, 1997.
Findings Of Fact On October 31, 1997, Petitioner took the civil professional engineering licensing examination. A score of 70 is required to pass the test. Petitioner obtained a score of 69. Petitioner challenged the scoring of question nos. 122 and 222. As part of the examination challenge process, Petitioner's examination was returned to the National Council of Examiners for Engineering and Surveying where it was re-scored. In the re-score process, the grader deducted points from Petitioner's original score. Petitioner was given the same raw score of 6 on question number 122; however, on question number 222 her raw score of 4 was reduced to a 2. Petitioner needed a raw score of 48 in order to achieve a passing score of 70; she needed at least three additional raw score points to obtain a passing raw score of 48. Petitioner is entitled to a score of 6 on problem number 122. The solution and scoring plan for that problem required the candidate to obtain a culvert size in the range of 21-36 inches. The Petitioner incorrectly answered 3.1 feet or 37.2 inches. She is not entitled to additional credit for problem number 122 because she answered the question with the wrong size culvert. Problem number 122 required the candidate to use a predevelopment peak flow of 40 cubic feet per second (cfs). Petitioner used 58.33 cfs. She chose the maximum flow rather than the predevelopment peak flow. In solving problem number 122, Petitioner chose a design headwater depth of 4.8 feet. The correct solution required a design headwater depth of 5.7 feet. Petitioner made another mistake in problem number 122; she failed to check the water depth in the downstream swale. Petitioner concedes she was given sufficient information to solve problem number 122. She understood what the question was asking of her. She admits that she did not compute the critical depth of the water and that she did not complete the solution. Question number 222 had three parts. The candidate was required to determine the footing size, to select the reinforcing steel, and to provide a sketch for a concrete column located along the edge of a building. Petitioner understood the question and was provided enough information to solve the problem. Petitioner correctly checked the footing size as required by the first part; however, she did not select the reinforcing steel or show the required sketch. Therefore, Petitioner did not complete enough of the problem to qualify for a score of 4 points. She is entitled to a score of 2 points. The examination questions at issue here were properly designed to test the candidate's competency in solving typical problems in real life. The grader (re-scorer) utilized the scoring plan correctly. Petitioner has been in the United States for approximately eleven years. She lived in Romania before she came to the United States. In Romania, Petitioner used only the metric system in her professional work. While she has used the English system since moving to the United States, Petitioner is more familiar with the metric system. The Principles and Practice examination is an open-book examination. Petitioner took a book entitled the Fundamentals of Engineering Reference Handbook to the examination. When the proctor examined her books, she told the Petitioner she was not permitted to keep the handbook. The proctor took the handbook from the Petitioner. Petitioner protested the confiscation of her reference book because she had used the same book in two previous tests. About ten minutes later, the proctor's supervisor returned the book to Petitioner. Petitioner's book was returned at least ten minutes before the test began. She was permitted to use the book during the test. There is no persuasive evidence that the proctor's mistake in temporarily removing Petitioner's reference book caused her to be so upset that she failed the test. Candidates were not permitted to study their books prior to the beginning of the examination. Petitioner may have been nervous when the test began. However, Petitioner received a perfect score of ten points on the first problem she worked, problem number 121.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED that the Board of Professional Engineers enter a Final Order confirming Petitioner's score on the examination and dismissing the Petitioner's challenge. DONE AND ENTERED this 13th day of January, 1999, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 January, 1999. COPIES FURNISHED: Natalie A. Lowe, Esquire Board of Professional Engineers 1208 Hays Street Tallahassee, Florida 32301 William Bruce Muench, Esquire 438 East Monroe Street Jacksonville, Florida 32202 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Dennis Bartin, President Florida Engineers Management Corporation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Donald A. Moyant, Petitioner, operates a contractors' exam school in Brandon, Florida, at which he preps builders to take the CILB exam for licensure as contractors. Petitioner took the exam given in June 1985 and received a score of 58.60. A score of 70.00 is required to pass this examination. The only answer that Petitioner questions is the answer he supplied to question No. 2, which related to the number of reinforcing bars required in a concrete slab of given dimensions and spacings of the bars. In Petitioner's solution to the problem he dropped the fractional bar that resulted from dividing the length of the slab by the spacing between bars. The correct solution requires the addition of a bar for this fractional spare. Petitioner's purpose in pursuing this proceeding is to obtain information to use in his Contractors Exam School, Inc. Since he would not have passed the examination even if his solution to question No. 2 had been marked correct, Petitioner is without standing to bring this action because he is doing so on behalf of the school he runs and not to allow him to receive a passing grade.
The Issue Whether Petitioner is entitled to additional credit for his responses to question numbers 21 and 24 of the Principles and Practice of Engineering Examination administered in April 1998.
Findings Of Fact Petitioner took the April 24, 1998 professional engineering licensing examination with an emphasis in civil engineering. A score of 70 is required to pass the test. Petitioner obtained a score of 69. In order to achieve a score of 70, Petitioner needs a raw score of 48. Therefore, Petitioner is in need of at least one additional raw score point. Petitioner is challenging question numbers 21 and 24. They are both multiple-choice questions and worth one point each. Exhibit 10 contains a diagram for the candidate's use in answering question numbers 21 and 24. Question 21 requires the examinee to calculate the percentage of wooded land on the diagram. The diagram contains a rectangle labeled "woodlot," and within the rectangle are three non-contiguous areas marked with schematics of trees. The Petitioner reduced the percentage of wooded area to conform to the portion of the area labeled "woodlot" marked with schematics of trees. In regard to question number 21, the Petitioner asserts that as a matter of convention, by failing to put the trees everywhere in the wooded lot, one may assume that there are trees only where there is a schematic of the trees. The Petitioner's challenge was rejected on the basis that the scorer opined that it is standard practice that drawings are only partially filled with details, and the most reasonable interpretation of the site plan drawings is that the woodlot fills the entire area enclosed by the rectangle. John Howath, a professional engineer, testified regarding accepted conventions in engineering drawings. In Howath's opinion the drawing on the examination used inconsistent methodologies and was confusing regarding whether all of the area designated by the label or "call out" of woodlot was in fact wooded. Both the Petitioner and Mr. Howath referred to drawings in the Civil Engineering Reference Manual which showed areas on drawings totally covered with visual indications of a particular material or condition. Peter Sushinsky, a professional engineer, testified as an expert for the Respondent. Mr. Sushinsky acknowledged the Petitioner's exhibits; however, Mr. Sushinsky noted that these were only a few examples of drawings that are available. Mr. Sushinsky referenced construction drawings he had seen in his practice with partial "cross-hatching" just like the diagram on the examination. In sum, Mr. Sushinsky's experience was that diagram might be totally or partially "cross-hatched." In Mr. Sushinsky's opinion it was not a bad diagram, only subject to a different interpretation by a minor group. Question number 24 asked the candidate to calculate the weir peak discharge from the catchment area using the rational formula. The Petitioner asserts the question is misleading and should read, "What is the peak discharge from the watershed?" The Petitioner bases his assertion on the ground that the "rational formula" is used to compute discharge from a watershed not a weir, as mandated by the question. The scorer did not address the Petitioner's concerns. The scorer stated, "It is clear from the item statement that the weir equation is not to be used." However, the questions ask the candidate to compute the weir discharge. Jennifer Jacobs, a professor of engineering, testified regarding the rationale formula that it was used to calculate watershed discharge and not weir discharge. All experts agreed that the rational formula is not used to compute weir discharge. The experts all agree that the question was confusing because the rational formula is not used to calculate the discharge from a weir. The Respondent's expert justifies the answer deemed correct on the basis that if one uses the rational formula and computes the watershed discharge, one of the answers provided is close to the result. The Respondent's expert calculated the watershed discharge as 230.6 cubic feet per second (cfs). The answer deemed correct was 232 cfs. The expert stated the weir attenuates flow. If the weir attenuates flow one would expect an answer less than 230.6 cfs., not an answer equal to or greater than 230.6 cfs. The amount of attenuation is based upon the physical features of the impoundment area and the mouth of the weir. Weir Attenuation varies. The only answers smaller than 230.6 are 200 or 32. Is the 232 cfs. answer wrong because it does not allow for attenuation by the weir? How much did the weir attenuate the flow? Under these facts, the question is capricious. The Respondent argues that the Petitioner didn't follow instructions while acknowledging that the "correct" answer is not the answer to the question that was asked.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Respondent enter a final order awarding Petitioner two raw points and a passing score on the Principles and Practice of Engineering Examination. DONE AND ENTERED this 20th day of May, 1999, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 20th day of May, 1999. COPIES FURNISHED: Mark W. Nelson 720 Northwest 31st Avenue Gainesville, Florida 32609 Natalie A. Lowe, Esquire Board of Professional Engineers 1208 Hays Street Tallahassee, Florida 32301 Dennis Barton, Executive Director Board of Professional Engineers 1208 Hays Street Tallahassee, Florida 32301 William Woodyard, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Is Petitioner entitled to one additional point on the October 1996 Professional Civil Engineer Examination so as to achieve a passing score for licensure in Florida?
Findings Of Fact Petitioner took the Civil Engineer Examination given in October 1996. The Department of Business and Professional Regulation's Bureau of Testing notified Petitioner by Examination Grade Report dated February 17, 1997, that she had earned a score of 69.00 on the Civil Engineer Examination. The minimum passing score for the Civil Engineer Examination is 70.00. Petitioner timely requested formal hearing and challenged only Question 120, for which she received no points. Petitioner is trained as a materials engineer. Question 120 is a soils and foundation problem outside her concentrated area of study. It is an open book examination question. Petitioner selected the correct equation from the applicable manual, but acknowledged that she solved the variables of that equation incorrectly. The National Council of Examiners for Engineering and Surveying (NCEES) produced, distributed, and was responsible for grading the examinations. Petitioner contended that the examiner who graded her answer sheet applied different criteria than the examination criteria published by the NCEES. Petitioner further contended that since one criterion her grader actually used was merely to "write the correct equation," she should be awarded at least one point on that basis. However, a comparison of the actual grader's handwritten "summary" on Petitioner's Solution Pamphlet (Respondent's Exhibit 3) and the NCEES's Solutions and Scoring Plan (Respondent's Exhibit 2) does not bear out Petitioner's theory. It is clear that out of five possible parts of the question, which five parts total two points' credit each, merely selecting the correct equation from an open text would not amount to two points, or even one point, credit. I accept as more competent, credible and persuasive the testimony of Eugene N. Beauchamps, the current Chairman of the NCEES Examination Policy Committee and a Florida licensed Professional Engineer, that the grader's "summary" describes what he actually reviewed in Petitioner's written solution to Question 120 rather than establishing one or more different grading criteria. In order to receive a score of two on Question 120, the candidate was required to demonstrate any one of five requirements listed in the NCEES Solution and Scoring Plan for "2-Rudimentary Knowledge." The first requirement in the NCEES Solution and Scoring Plan (Respondent's Exhibit 2) for receiving a score of two points is, "Determines effective overburden stress at mid- depth of clay layer." The remaining four NCEES scoring criteria required that the examinee: Computes the change in effective stress at mid- depth of the clay layer due to placement of the fill. Computes the primary consolidation settlement, based on a change in effective stress, due to the fill surcharge. Evaluates the Average Degree of Consolidation and the Time Factor. Determines the waiting period after fill placement recognizing the existence of double-drained conditions. In order to gain two more points (total 4 points) so as to demonstrate "More Than Rudimentary Knowledge But Insufficient to Demonstrate Minimum Competence," Petitioner would have to have met two of the five bulleted criteria. For two more points (total 6 points) for "Minimum Competence," Petitioner would have had to score three bullets. For two more points (total 8 points) for "More than Minimum But Less Than Exceptional Competence," Petitioner would have had to score four bullets. Finally, to attain "Exceptional Competence" for 10 total points, Petitioner would have had to score all five bullets. In the first correct equation for answering Question 120, "p sub zero" (p naught) equals the present effective overburden pressure, which represents what clay was present before anything was put on top of the clay layer. "P" equals the total pressure acting at mid-height of the consolidating clay layer or the pressure of the dirt and the water in the dirt. "H" equals the thickness of the consolidating clay layer. Petitioner's solution for the first bullet, "determining the effective overburden stress at mid-depth of clay layer," indicated p sub zero (p naught) as the "present effective overburden pressure," but it incorrectly calculated p sub zero equaling 125 pounds multiplied by 13 feet. This is incorrect because the effective overburden pressure would not include 13 feet of fill. The 13 feet of fill is not part of p sub zero, the present effective overburden pressure. Petitioner's solution for the first bullet, also multiplied water, represented by 62.4, by 12, which is incorrect. She should have used a multiplier of 10 to receive credit for this problem. The grader indicated the correct equation was used incorrectly by Petitioner because of the two foregoing incorrect calculations. The equation, as Petitioner stated it, was correct and her multiplication was correct. Her solution identified P sub zero as present effective overburden pressure but present effective overburden pressure would not include the fill. Petitioner had the correct equation for the present effective overburden pressure and her mathematics were correct. However, she did not use the consolidation equation correctly, not obtaining the correct percentage of primary consolidation. As stated, the problem did not consider the fill as part of the present effective overburden pressure. Her solution also contained the correctly written time rate of settlement equation but failed to use it, and no waiting period was determined. The practical result of Petitioner's error could range from a cracked building to a collapsed building, depending upon the degree of error to site and materials.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a Final Order denying Petitioner's challenge and affirming her score as one point below passing. RECOMMENDED this 3rd day of March, 1998, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1998. COPIES FURNISHED: Susan E. Wilson 3581 Jose Terrace Jacksonville, Florida 32217 R. Beth Atchison Assistant General Counsel Department of Business and Profession Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Angel Gonzalez, Executive Director Department of Business and Profession Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Lynda L. Goodgame General Counsel Department of Business and Profession Regulation 1940 North Monroe Street Tallahassee, Florida 32399
