The Issue Whether Respondent, William T. Cooper, pled guilty to acts which directly relate to the practice of engineering or the ability to practice engineering within the meaning of Subsection 471.033(1)(d), Florida Statutes, and, if so, what penalty should be imposed on his license to practice engineering.
Findings Of Fact Respondent, William T. Cooper (Respondent), is and has been at all times material to this matter, a licensed professional engineer in the State of Florida having been issued License No. PE 20462. On March 22, 2000, Respondent was charged by criminal indictment by the Fifteenth Statewide Grand Jury in Leon County, Florida. That indictment contained twelve separate counts. On August 29, 2000, Respondent entered a Plea Agreement with the State of Florida in the Circuit Court of the Second Judicial Circuit in Leon County, Florida. Pursuant to the terms of the Plea Agreement, Respondent entered a plea of guilty to Counts Seven and Eight of the indictment and agreed to pay restitution in the amount of $84,000 to the State of Florida. The amount of restitution is equivalent to the amount of the fees that Respondent was paid for his services. In the Plea Agreement, the State agreed to nolle prosse Counts One though Six and Counts Nine through Twelve against Respondent, and it also agreed that a formal adjudication of guilt would be withheld. Finally, the Plea Agreement provided, that by entering a plea of guilty, Respondent "admits the facts of the charge." Counts Seven and Eight of the indictment charged Respondent with two counts of Grand Theft, in the first degree, and both counts provide in relevant part the following: WHITE CONSTRUCTION CO., INC., by and through its officers, representatives and employees, and WILLIAM THOMAS COOPER, JR. as part of a related transaction . . . committed GRAND THEFT in the First Degree and did thereby knowingly obtain or use or endeavor to obtain or use U.S. Currency or other property with an equivalent value to-wit "delinquency days" with a value of $100,000 or more, the property of another to-wit Florida Department of Transportation, hereinafter FDOT, with the intent to temporarily or permanently deprive said person of a right to the property, or benefit therefrom, or to appropriate the property for the defendants' own use or to the use of a person(s) not entitled thereto, by filing false and fraudulent charges or claims or lawsuits for damages allegedly attributable to the FDOT, and fraudulently opposing delinquency status declared by FDOT, that included false or fraudulent charges or claims in that the claim(s) presented contain(s), when all line items are considered together, damages and/or delays for the same days and the same equipment expenses on multiple occasions, and/or fraudulent or false claims for equipment not owned by WHITE CONSTRUCTION CO., INC. Count Seven relates to Project Number 36210-3439 on Interstate 75 (I-75) in Marion County, Florida, and to activities which allegedly occurred between January 30, 1996, and January 30, 1998. Count Eight relates to Project Nos. 36210-3440 and 36210-3441 on Interstate 75 (I-75) in Marion County, Florida, and relates to activities which allegedly occurred between July 16, 1997, and March 17, 2000. The indictment arose out of certain work performed by Respondent after he was retained by attorneys representing White Construction Company to do cost evaluation and preparation of cost damages, and to testify regarding those matters in depositions and, if necessary, at trial. Respondent was not retained by the law firm to work as an engineer. Prior to retaining Respondent, the attorneys who represented White Construction Company had retained several engineering firms to identify and analyze all the engineering issues. The attorneys who retained Respondent spent an amount in excess of $120,000.00 for those services performed by those engineering firms. Moreover, as a result of the engagement of those engineering firms and the work they performed, the engineering issues had already been identified before the Respondent was retained. During the time he was retained by the law firm that was representing White Construction Company, Respondent went to the job sites, the I-75 road improvements in North Central Florida, a total of three times. The largest continuous time the Respondent was on the construction site was four hours. In order to do the work that the law firm had retained him to do, prepare cost evaluations and calculate cost damages, Respondent received and relied on the information provided by the engineers, as well as information provided by White Construction Company and the Florida Department of Transportation. Respondent did not identify or analyze engineering issues. Rather, his responsibility was to take the analysis of various engineering issues that had been done by the engineering firms and to calculate the claim cost. In carrying out this responsibility, Respondent was not allowed to question the calculations performed by the engineers. Respondent had no knowledge that the information provided to him was in any way a misrepresentation of the truth. Since the time Respondent calculated those claims, he learned that there had been false representations made by White Construction Company. For example, Respondent later learned that statements made to him regarding equipment and labor that were on the jobs for which he prepared claims were not on the subject jobs. The attorneys that retained Respondent requested that he prepare the claims both with concurrences and without concurrences. Respondent complied with this request and sent the claims to the law firm. A "concurrency" refers to an instance where the same labor and equipment used for one or more projects are reported on two or more claims with overlapping periods of time. For example, a contractor may submit a claim for June through August, after which he submits another claim for August though December, and, finally, he submits a claim that covers the middle of December to January. The concurrency occurs if the same labor and equipment costs included in the first claim are also included in an overlapping time period in the second claim. If the labor and equipment costs in the second period are also included in an overlapping time period in the third claim, there is concurrency with respect to the labor and equipment costs that have been included on both claims for the same time period. It is a customary practice in claims preparation for contractors to ask a claims preparer to prepare separate claims that include the concurrencies as well as to prepare claims with the concurrences taken out. When the claims include concurrencies, someone must go back and take the concurrencies out. The owner or contractor decides who will be responsible for doing this. In this case, the law firm that retained Respondent requested only that he prepare the claims with concurrencies and those without concurrencies. The claims preparer does not submit the claims and has no control over which claims the contractor presents for payment. The claims which were at issue in the underlying legal proceeding were not submitted by Respondent. The claims prepared by the Respondent and certified and presented to the Florida Department of Transportation by White Construction Company totaled $30 million. However, the claims prepared by Respondent could only have totaled $30 million if all the concurrencies remained in all the claims. Respondent never submitted claims to the Florida Department of Transportation or otherwise indicated to the Department that White Construction Company was entitled to the total amount of the claims including the concurrencies. James D. Eckert, Esquire, was qualified and accepted as an attorney who is an expert in the field of criminal law and criminal defense. Mr. Eckert represented Respondent in matters related to the criminal indictment referenced in paragraph 2. He took discovery with regard to Counts Seven and Eight but never found any evidence that incriminated Respondent. The reason Respondent entered a plea of guilty to Counts Seven and Eight of the criminal indictment was for reasons other than he was guilty. Mr. Eckert recommended that Respondent enter a plea because of several compelling factors. These factors included the following: the Statewide Prosecutor was offering to withhold adjudication; the trial would have lasted at least six weeks and cost Respondent more than $150,000.00; all witnesses who could corroborate Respondent's innocence had announced that they were invoking the Fifth Amendment and would not testify; and the Plea Agreement was intended to be a total settlement of the entire situation. Both the Florida Department of Transportation and the Florida Department of Law Enforcement agreed to the terms of the plea agreement. As support for its position in this case, Petitioner relies on a few excerpts from the more than 700-page deposition transcript of Respondent taken in 1998, and its witnesses interpretation of that deposition. According to testimony presented by Petitioner, one basis of the charge against Respondent was that, at the deposition in the underlying civil action between White Construction Company and the Florida Department of Transportation, Respondent was "introduced as the engineer for White Construction Company that was most knowledgeable about claim issues that were submitted to the Department in the damage lawsuits in addition to his representations in depositions." A review of the deposition transcript, however, reveals that Respondent was not introduced as an engineer, but was represented as the person most knowledgeable about the claim damages. Petitioner also presented testimony that, with regard to claims preparation, Respondent was acting as an engineer to the extent that he was involved in "technical issue identification and development." No specific facts were given to support this general statement or the allegations in the Amended Complaint. The evidence presented by Petitioner did not establish that the conduct described in paragraphs 25 and 27, even if true, was the same conduct that was the basis of Counts Seven and Eight of the indictment. Moreover, Petitioner failed to show that, in either case, Respondent was acting as an engineer or that the conduct was directly related to the practice of engineering or the ability to practice engineering. Engineering education, training, and experience are not necessary or required to prepare claims and cost damages. This is evidenced by the fact that there are many people who prepare claims such as the ones prepared by Respondent and who use the same methodologies that were used by Respondent but who are not engineers. There was no evidence presented to support the allegation in the Amended Administrative Complaint that the acts to which Respondent pled guilty directly relate to the practice of engineering or the ability to practice engineering. Respondent has been licensed as a professional engineer since 1974. Except for the complaint that is the subject of this proceeding, Respondent has never had a complaint filed against his license.
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 dismissing the charges in the Amended Administrative Complaint against, Respondent, William T. Cooper. DONE AND ENTERED this 6th day of January, 2003, 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 6th day of January, 2003. COPIES FURNISHED: David P. Rankin, Esquire Law Offices of David P. Rankin, P.A. 3837 Northdale Boulevard, Suite 332 Tampa, Florida 33624 Douglas D. Sunshine, Esquire Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Natalie A. Lowe, Executive Director Board of Professional Engineers 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
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
The Issue Whether Petitioner's response to the questions on the October 1990 Florida Professional Engineers Examination were sufficient to allow him to receive a passing grade. Whether problems in Petitioner's examination occurred which were due to the Department's change in the list of reference materials allowed into the examination room.
Findings Of Fact In order to obtain licensure as a Professional Engineer in Florida, Petitioner is required to successfully complete the licensure examination. Petitioner sat for the October 1990 National Engineering Licensure Exam. He received an overall score of 69.1%. A passing score for the examination was 70.0%. The Professional Engineer Candidate Information Booklet advised candidates that the reference materials taken into the examination room had to be formally bound, copyrighted and published. The only exception to this rule was the Standard Building Code, which is contained in a three-ring binder. On the first day of the examination, Petitioner learned that the Board of Engineers had approved the use of additional codes, standards and manuals that are bound in three ring binders during the examination. One of these newly approved references was the Highway Capacity Manual, Transportation Research Board. Petitioner did not have his copy of the Highway Capacity Manual with him at the examination site because of the prior prohibition against its use during the exam. Petitioner did not object to the last minute expansion of the reference materials list until after he received his test results. The examination questions and answers challenged by Petitioner are Questions #124 and #425. Question #124 involved a five-sided figure that contained curves in two of its sides. According to the situation given as part of the test question, this figure was a parcel of land. The engineer was required to compute the area of the parcel. The first requirement for part (a) of the question was the computation of the area of traverse ABCDEA in acres. The figure provided some of the sector measurements in feet as well as a stated radius for each curved area. A review of Petitioner's calculations for part (a) reveals that he did not close the figure. Closure is required in a problem involving land boundaries. Thus, he was not able to compute the area and convert the measurement to acres, as required. Each side had to be included to obtain the proper area measurement. Petitioner did not demonstrate entitlement to credit for his incorrect answer to part (a) because he did not follow the instructions or demonstrate competency in the engineering principles tested by this question. The scoring plan for the examination did not provide partial credit for the incomplete calculations made by Petitioner on this portion of the exam. Petitioner received full credit for part (b) of Question #124 during the original grading of the exam so that portion of the question is not in dispute. Part (c) of Question #124 required the exam candidates to compute the length of curve DE in feet. The measurement for sector DE was provided in feet along with the measurement for the radius. Petitioner's answer to Question #124, part (c) was 514.39 feet. The correct answer was 514.79 feet. Although Petitioner's solution is similar to the correct answer, he did not compute the length of the curve for the side DE as required by the exam instructions. Instead, he computed the central angle for the circular arc DE. Even in his computation of the central angle, Petitioner used a central angle of 58.94 instead of the correct angle of 58.99. The examination sought to test Petitioner's ability to compute the length of a curve. Petitioner ignored the instruction and used a different calculation method that was not requested. As a result, no credit was given for the wrong answer. Petitioner did not demonstrate competency in the engineering principles being tested. Question #425 was a multiple-choice problem with ten parts. The responses were to be made from five alternatives for each part. Petitioner received eight of the ten possible points for the question. Only subparts (3) and (4) were answered incorrectly. Petitioner did not demonstrate entitlement to credit for his incorrect answer to subpart (3) of Question #425. He did not provide evidence to support his theory that his answer "D" (1,390 gallons) was within a reasonable margin of error and should be given credit. The correct answer is "E" (1,410 gallons). The necessary calculations reveal that the actual answer is 1,408 gallons. The question asks for the multiple choice selection which is "most nearly" accurate based on the information given in subpart (2). Based upon the problem itself, Petitioner's additional input regarding temperature and expansion possibilities are without merit. The problem was not solved as presented. Petitioner did not demonstrate his ability to properly calculate the amount of substance occupying a particular volume. Subpart (4) of Question #425 deals with the symbols for roadway materials. The candidates were expected to select one of the listed materials as the one most likely used at a particular stage of roadway construction. Petitioner was unable to reference the Highway Capacity Manual when answering this question because the original instructions in the Professional Engineer Candidate Information Booklet instructed candidates that the only three-ring binder book allowed into the exam was the Standard Building Code. Although the decision prohibiting the entry of the Highway Capacity Manual into the examination room was changed prior to the exam, Petitioner was not alerted in time to have it available for his use. Prior to final hearing, Petitioner contended that if he had been given sufficient notice, he could have used the Highway Capacity Manual to define the symbols in subpart (4) of Question #425. At final hearing, Petitioner stated the answer could be in that manual or one of the other handbooks in the same series. The Highway Capacity Manual does not contain definitions for the symbols set forth in subpart (4). The Asphalt Handbook may contain such symbols. This reference would have been allowed into the examination even prior to the changed ruling on references contained in three-ring binders. The Hearing Officer was unable to find all of the symbols in subpart (4) in the pages provided by Petitioner. Petitioner failed to demonstrate that the change in the Department's policy regarding references in three-ring binders affected his ability to correctly answer subpart (4) of Question #425. He should not be given credit for his incorrect response on the answer sheet.
Recommendation Based upon the foregoing, it is RECOMMENDED: The Department should enter a Final Order which denies Petitioner's challenges to Questions #124 and #425. The exhibits marked "confidential" should remain sealed and not open to public inspection. DONE and ENTERED this 12th day of November, 1992, at Tallahassee, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of November, 1992. APPENDIX Petitioner's proposed findings of fact are addressed as follows: Accepted. See HO #2. Accepted. See Conclusions of Law. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. Contrary to fact. Rejected. Contrary to fact. Accepted. See HO #6. Accepted. Rejected. Contrary to fact. See HO #14. Accepted. Accepted. Rejected. Argumentative. Rejected. Contrary to fact. See HO #9. Rejected. Contrary to fact. See HO #15. Rejected. Contrary to fact. See HO #14. There was no number 20 in Petitioner's findings. Rejected. It was Petitioner's responsibility to meet this burden. Rejected. Improper argument. Rejected. Argument as opposed to factual finding. Rejected. Contrary to fact. See HO #23. Rejected. Speculative and contrary to evidence. Accepted. Accepted, except for the disadvantage issue. Speculative. Rejected. Contrary to fact. Rejected. Improper summary. Argumentative. Respondent's proposed findings of fact are addressed as follows: Accepted. See HO #2. Accepted. See Preliminary Statement. Accepted. Accepted. See HO #7. Accepted. See HO #9. Accepted. See HO #12. Accepted. Accepted. See HO #11 and #14. Accepted. See HO #15. Accepted. See HO #18-#19. Accepted. See HO #23. COPIES FURNISHED: Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Angel Gonzalez, Executive Director Board of Professional Engineers 1940 North Monroe Street Tallahassee, FL 32399-0792 Russell A. Ferlita 1220 LaBrad Lane Tampa, FL 33613 Vytas J. Urba, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-07950
The Issue The issue for disposition in this case is whether Respondents have implemented agency statements that meet the definition of a rule, but which have not been adopted pursuant to section 120.54.
Findings Of Fact Petitioner, Robert Wood, P.E., is a Florida-licensed professional engineer, holding license No. PE 31542. A large part of Petitioner?s work involves the design of aluminum-framed structures. Respondents, DBPR and FBPE, are charged with regulating the practice of professional engineering in the State of Florida, pursuant to chapters 455 and 471, Florida Statutes, and the rules promulgated thereunder, Florida Administrative Code Chapter 61G15. The FEMC is a public-private partnership established by the legislature to provide administrative, investigative, and prosecutorial services to the FBPE. By statute, the FEMC operates under a written contract (Contract) with the DBPR, which Contract is approved by the FBPE. Term of the Contract From the creation of FEMC in 1997 until 2000, the legislature provided that the required written contract was to be “renewed annually.” In 2000, the legislature amended section 471.38 to require that the written contract be an “annual contract.” In 2003, the legislature again amended section 471.38 to repeal the requirement that the contract be an annual contract. There is currently no specified term or time for renewal for the required written contract. The DBPR and the FEMC have elected to continue to enter written contracts with a term of one year. Determination of Legal Sufficiency Since its creation in 1997, section 471.038 has provided that “[t]he corporation may not exercise any authority specifically assigned to the board under chapter 455 or this chapter, including determining probable cause to pursue disciplinary action against a licensee, taking final action on license applications or in disciplinary cases, or adopting administrative rules under chapter 120.” The only change to that restriction was made in 2000, when the term “corporation” was changed to “management corporation.” In 2000, the legislature also enacted the Management Privatization Act, section 455.32, Florida Statutes. That Act was intended to establish a model for the creation of non-profit corporations with which the DBPR could contract for “administrative, examination, licensing, investigative and prosecutorial services to any board created within the department.” The similarities between section 471.38 and section 455.32 make it obvious that the latter was largely patterned after the former. Among the duties to be performed by a “corporation” under section 455.32(10) is to: . . . make a determination of legal sufficiency to begin the investigative process as provided in s. 455.225. However, the department or the board may not delegate to the corporation, by contract or otherwise, the authority for determining probable cause to pursue disciplinary action against a licensee, taking final action on license actions or on disciplinary cases, or adopting administrative rules under chapter 120. In previous years, at least through 2001, the written contract between the DBPR and the FEMC provided that “FEMC shall not exercise the police powers inherent in the Department and the FBPE including a determination of legal sufficiency or insufficiency of a disciplinary complaint.” At some time after the passage of the Management Privatization Act, the contractual “police powers” restriction was changed, and now reads, as reflected in the current Contract, as follows: Except when providing those prosecutorial and investigative services set forth in this Agreement, FEMC shall not exercise the police powers inherent in the Department and the FBPE under Chapters 455 or 471, Florida Statutes, including determining probable cause to pursue disciplinary action against a licensee, other than failure to comply with final orders of the Board as set forth in Rule 61015-18.005(2), Florida Administrative Code, taking final action on license applications or in disciplinary cases, or adopting administrative rules under Chapter 120, Florida Statutes. Prosecutorial servicing shall only be executed in the name of FBPE. That contractual restriction is consistent with the statutory limitation on the powers of the FEMC set forth in section 471.38. In its current form, the Contract establishes the services that are to be provided by FEMC to the DBPR and the FBPE. The list of prosecutorial services to be provided by FEMC include coordinating with investigators, reviewing and taking “appropriate action” on complaints, and preparing cases for presentation to the FBPE probable cause panel. The list of investigative services to be provided by FEMC include receiving complaints, interviewing complainants, witnesses, and subjects of complaints, issuing subpoenas, preparing investigative reports, and taking other actions leading to the prosecution of a case. The Contract does not specifically address the issue of determining legal sufficiency. The typical procedures of the FEMC in performing its investigatory functions are initiated when the FEMC receives a complaint by various means, including telephone, e-mail, or submission of a written complaint. Written complaints are normally directed to the FEMC chief prosecutor, who assigns them to an investigator for initial review. If the complaint is verbal, the investigator fielding the call will ask the complainant to file a written complaint. If a complaint is unaccompanied by information to substantiate the claims, the investigator typically requests supporting documentation, which may be a set of engineering plans, a report, or similar evidence of the facts underlying the complaint. In a procedure implemented by the FEMC in 2012, after receipt of the complaint and supporting documentation, the investigator forwards the complaint to an engineering expert retained by FEMC for a pre-review. The expert prepares a preliminary report which is then considered in the determination of legal sufficiency. Prior to implementation of the 2012 pre- review procedure, the determination of legal sufficiency was made without the benefit of a pre-review report in the manner otherwise described below. After receipt of the complaint, the supporting documentation, and, since 2012, the pre-review report, the investigator presents the complaint to the FEMC chief prosecutor. If the chief prosecutor determines that the complaint is not legally sufficient, the investigator is instructed to draft a memorandum for the chief prosecutor to review, which is in turn submitted to the FBPE Executive Director for signature. If the chief prosecutor determines that the complaint is legally sufficient, he or she verbally authorizes the investigator to place the engineer on notice of the investigation. At that point, the complaint is investigated using the investigative tools available to FEMC as set forth in the Contract. If sufficient evidence that a violation has occurred is found, the investigation culminates in a recommendation to the FBPE probable cause panel for a decision as to whether the panel believes there to be probable cause to proceed with disciplinary action. The decision to proceed with a disciplinary proceeding requiring a point of entry to challenge the action is entirely that of the FBPE probable cause panel. Probationary Project Review On November 4, 2009, FBPE entered a disciplinary final order regarding Petitioner that incorporated a stipulated settlement agreement, and imposed sanctions on Petitioner, including probation. By his entry of the settlement stipulation, Petitioner agreed to a “project review” at six and eighteen-month intervals. The project review consisted of the submission by Petitioner of a list of all completed projects. That list was provided to an engineering expert, who then selected two of the projects for a more comprehensive review. The steps to be performed by Petitioner and the FBPE are generally described in Project Review Process Guidelines that were provided to Petitioner by FBPE as an attachment to the notice of the two projects selected for comprehensive review. As a result of the project review, the two projects were determined to violate engineering standards, which resulted in the FEMC making a recommendation of probable cause to the FBPE probable cause panel. The probable cause panel found probable cause, leading to the issuance of an Administrative Complaint against Petitioner. Petitioner introduced evidence of one other case in which a project review was required as a condition of probation. In that case, an administrative law judge, after having determined that the professional engineer committed violations of section 471.033 and Florida Administrative Code Rule 61G15- 19.001, recommended imposition of “probation for two years with appropriate conditions for this case.” The Final Order, entered on March 12, 2008, imposed the recommended probation “with a plans review at 6 months and 18 months from the date of this Order.” The basis for the imposition of that sanction was not explained. There was no evidence introduced at the final hearing as to any other specific case in which a project review was required, other than the case involving Petitioner. The 2012 FEMC Annual Report, which is a business record of the FEMC, indicated that between July 1, 2011 and June 30, 2012, the FEMC was involved in the investigation and/or prosecution of 32 cases in which Administrative Complaints were filed against engineers. Disciplinary sanctions imposed against engineers during that one-year period included, among others, twenty-five reprimands, six license suspensions, eight probations, seven license restrictions, two voluntary license relinquishments, and four license revocations. Also included among the sanctions imposed during that period were three project reviews. The sanction of project review is one that is, statistically, used sparingly by the FBPE. There was no evidence introduced to establish the criteria, if any, for the imposition of a project review as a condition of probation, or to demonstrate that it was generally applied in any specific circumstances.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel and the entire record compiled herein, the following relevant facts are found. Gary L. Wheeler, Respondent, is a graduate of Bob Jones University, having received a Bachelor of Science degree therefrom in accounting in 1974. On July 27, 1979, Respondent received his California certificate as a certified public accountant. Thereafter, Respondent filed an application to obtain a reciprocal C.P.A. certificate in Florida based on his certificate issued by the State of California (Certificate No. E-28234). His application was denied by the Petitioner on October 26, 1979, for the following reason: Applicant failed to satisfy the requirements set forth in Section 7(3)(b), Chapter 79-202, Laws of Florida, inasmuch as the license issued to Gary L. Wheeler in California is not issued under criteria substantially equivalent to that in effect in Florida at the time the California license was issued. Bob Jones University was not recognized as an accredited university in Florida by the Board when Respondent received his California certificate inasmuch as it was not listed among the institutions of postsecondary education by the Council on Postsecondary Accreditation (COPA). During September, 1976, Petitioner adopted the COPA list of schools as the schools from which it would accept graduates to sit for its examination. This was done for the avowed purpose of ensuring minimum competence and technical fitness among the ranks of Florida accountants. Douglas H. Thompson, Jr., the Petitioner's Executive Director since 1968, is the Board's chief operating officer and carries out its functions respecting applications for licensure. As such, Mr. Thompson was the person charged with examining Respondent's application pursuant to his California certificate to determine whether the Respondent's certificate was issued under criteria "substantially equivalent" to Florida's licensing criteria. Respondent's application was considered by the Board on two (2) occasions and rejected because Respondent's alma mater, Bob Jones University, is not listed among the accredited schools and universities by COPA. See Sections 473.306; 473.307 and 473.308, Florida Statutes, as amended; and Chapter 21A-28.06, Florida Administrative Code. As an aside, it was noted that the Board, in adopting its procedure for evaluating the criteria for applicants who were seeking to obtain certificates based on the reciprocal qualifications guidelines also adopted other equivalency procedures which provide Respondent an alternative method for which he may obtain a Florida certificate. In this regard, Respondent is only approximately six (6) quarter hours away from obtaining his certificate under the alternative equivalency procedures established by the Board. See Chapters 21A-9.01 through 9.04(4), Florida Administrative Code.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent's appeal of the Board's action in denying his application for a reciprocal license to practice public accounting based on the issuance of his California certificate be DENIED. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 26th day of March, 1980. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675
The Issue Whether Petitioner is entitled to credit for his answers to questions 41 and 48 on the February 2000 Construction, Building Contractor (Contract Administration) examination.
Findings Of Fact Upon consideration of oral and documentary evidence received at the hearing, the following relevant findings of fact are made: The examination for licensure of a general contractor in the State of Florida is administered by the Department of Business and Professional Regulation, Division of Technology, Licensure and Testing. Chapter 455.217, Florida Statutes. A written examination is authorized by Rule 61G4-16.001, Florida Administrative Code. Respondent contracts with Professional Testing, Incorporated, 1200 East Hillcrest Street, Orlando, Florida, which develops tests for the Florida Construction Industry Licensing Board. This practice is approved by Section 455.217, Florida Statutes. Professional Testing, Incorporated, ensures that questions and answers are not ambiguous through a number of methodologies. Petitioner has been an "original" candidate for the construction, building contractor examination twice. The examination has three sections: business finance, project management, and contract administration. A candidate may retake any section three times before the entire examination has to be retaken. One of the questions Petitioner is challenging is the same question he had on the June 1999 examination, that is, the "S mortar" question. This question was repeated on the August 1999 and the February 2000 examination. The copies of the "S mortar" question and answers on the August 1999 and February 2000 examinations which were accepted into evidence were identical. Petitioner maintains that the August 1999 examination question and answers accepted into evidence is not the same as the one he had on his examination. Petitioner agrees that the answer he gave, 20.74, was an incorrect answer and that 46.67 (the "graded correct" answer) was correct. Petitioner maintains that the 20.74 answer he gave on the February 2000 examination was a result of having been advised that 46.67 was an incorrect answer on the August 1999 test. Petitioner examined his original answer sheet form both examinations (August 1999 and February 2000) at the hearing. Petitioner's original answer for the August 1999 examination showed his answer to be "B", an incorrect answer, not the "graded correct" answer "C" (which was 46.67). The second challenged question is question 48 which deals with a "critical activity list" also called a "critical activity interval" or "critical path." Petitioner's answer is 106 days; the "graded correct" answer is 86 days. Question 48 asked the test taker to identify "the latest day work must begin on the roofing activity." One-hundred and six is the number of days the roof must be completed by (not when work must begin). Since this roofing activity takes 21 days it must begin on the 86th day to be complete on the 106th day. The psychometrician expert witness testified that both questions (and answers) were within acceptable statistical ranges as valid. That opinion is accepted.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Bureau of Testing, enter a final order denying Petitioner's challenge to questions 41 and 48. DONE AND ORDERED this 30th day of January, 2001, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 2001. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jermado Emmanuel Turner 6511 John Aldan Way Orlando, Florida 32818 Cathleen O'Dowd, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
