The Issue The matters in dispute in this cause concern the attempts by Petitioner to achieve licensure in the State of Florida as a registered land surveyor, pursuant to Chapter 472, Florida Statutes, and through Rule 21HH-3.01, Florida Administrative Code. In particular, Respondent asserts that Petitioner has not met the necessary prerequisites in Section 472.013, Florida Statutes, to allow him to stand the licensing examination. Moreover, Respondent has not allowed Petitioner to gain licensure by endorsement as defined in Subsection 472.015 (3) , Florida Statutes. Petitioner contends that he is entitled to licensure by endorsement or in the alternative, to stand the examination, leading to his licensure by testing. WITNESSES AND EXHIBITS Petitioner testified in this cause and offered two exhibits which were received. Respondent presented a composite exhibit which is constituted of file materials related to the Petitioner's application for licensure and responses to the application request.
Findings Of Fact Petitioner is a retiree from the United States Army, having served 22 years, commencing in 1955. During his service, he obtained military occupational specialties related to the field of surveying in the artillery branch. This experience included occupational training given to Petitioner and examinations of his skills following that training; practical surveying work, and instructional work by Petitioner performed for the benefit of other trainees. This work experience included surveying activities in Florida while in the military. Those surveying duties were military assignments. Material related to Petitioner's training and job performance is generally set forth in Respondent's Exhibit No. 1. Petitioner's Exhibits Nos. 1 and 2 are further statements related to the Petitioner's military occupational specialties. Petitioner has made application to be licensed as a land surveyor in Florida in keeping with the provisions of Chapter 472, Florida Statutes. Through this process, it is Petitioner's desire to be accepted for licensure through the endorsement process or be given the opportunity to sit for the examination. Respondent is unwilling to accent Petitioner as a candidate for licensure by endorsement. In this connection, he did not establish his successful completion of an examination identified in Subsection 472.015(3)(a), Florida Statutes, or that he holds a valid license from another jurisdiction within the meaning of Subsection 472.015(3)(b) , Florida Statutes. After reviewing Petitioner's application, Respondent through correspondence dated September 10, 1982, denied Petitioner's reguest for licensure by examination premised upon the fact that Petitioner's land surveying experience was not verified by a registered land surveyor who had employed or supervised Petitioner's work. In addition, the letter of denial of licensure indicated that the applicant's file was not complete in that it failed to account for work experience following Petitioner's retirement from the armed services in 1976. (In the course of the hearing, it was established that Petitioner has not practiced land surveying following his retirement.) Notwithstanding his considerable experience, Petitioner has failed to submit by application and/or in the course of the final hearing, documentation which would verify that Petitioner has gained his experience in the field of surveying as a sub- ordinate to a land surveyor as defined in Subsection 472.005(3), Florida Statutes. His documentation did not identify that Petitioner's supervisors or commanders were land surveyors as previously defined and Petitioner did not establish in the hearing that his superiors were land surveyors, as defined. As a consequence, Petitioner failed to provide references from land surveyors setting forth the quality and character of his duties and responsibilities while under the land surveyor's supervision. After receiving the letter of denial of the application, Petitioner made a timely request for a formal Subsection 120.57(1), Florida Statutes, hearing. This matter was transmitted to the Division of Administrative Hearings and received by that Division on October 18, 1982. An initial hearing date was established for December 8, 1982, and was continued to allow for the negotiations between the parties. The case was subsequently reset for final hearing on March 16, 1983, the date the final hearing was conducted.
The Issue The issues in this case are whether certain questions within the June 2002 construction building contractor examination are invalid, and whether Petitioner should receive credit for certain answers scored as incorrect.
Findings Of Fact In June 2002, Petitioner sat for the construction building contractor examination. Shortly following the exam, Petitioner was advised that he incorrectly answered 17 of the 50 exam questions and did not attain the minimum passing score of 70 percent, but received a failing scaled score of 66 percent. Petitioner timely challenged the validity and scoring of eight questions, including questions 8, 14, 17, 33, 34, 38, 43, and 44. In order for Petitioner to acquire a passing score, Petitioner must prove that certain challenged questions are invalid or demonstrate that he is entitled to receive credit for his answers. Specifically, Petitioner must demonstrate that either three questions should be stricken from the exam providing Petitioner with 70.2 percent, two questions should be stricken and one answer scored as correct providing Petitioner with 70.8 percent or two answers should scored as correct providing Petitioner with 70 percent. QUESTION 8 Exam Question 8 asks, "According to AIA-A201, who determines the interest rate that the contractor can charge on due and unpaid payments?" Petitioner's expert, Mr. Uman, argues that the parties to the contract are not defined within the question and it is therefore misleading. However, the credited answer D, "all the parties must agree on the rate" is within the provided reference material and is clearly the best answer. It is not misleading and Petitioner's argument lacks merit. In addition, 89.47 percent of the test-takers correctly answered Question 8. QUESTION 14 Exam Question 14 is wordy and involves computations. It requires the test-taker to calculate the number of "labor" hours required per 100 pieces to build a wall, given certain pricing and wall construction information. Question 14 is ambiguous and confusing on its face. While the question asks for labor hours, the facts provide a fixed combined hourly cost for a mason and laborer's hour. There is no distinction made between "labor" hours and a "laborer's" hours. Mr. Collier admitted that there is some apparent confusion between "labor" costs and the "laborer's" costs. Mr. Palm further agreed and indicated that he fully understood Petitioner's rationale to divide the labor costs in half and choose answer A. Furthermore, it is clear that Petitioner's perception of the question was not unique. In fact, only 46.62 percent of the test-takers correctly answered Question 14. QUESTION 17 Exam Question 17 asks, "During the bid process, which document has priority in the event of conflicting information?" Clearly, the correct answer is B, "addenda." Petitioner's argument regarding "competitively bid projects" is without merit. Mr. Palm succinctly explained that Petitioner's selection was obviously incorrect because "plans don't change during the bid process unless there is an addenda issued." Moreover, 75.56 percent of the test-takers correctly answered Question 17. QUESTION 33 Exam Question 33 identifies a situation that where drawings differ from written specifications and where there is no legal precedent that one is more binding than the other. The question specifically calls for the best procedure according to the listed and available reference. While Mr. Uman argues that the answer does not appear within the reference material in a clear manner, the exact text of the question and answer are in fact within the material. Petitioner's argument lacks credibility. QUESTION 34 Exam Question 34 asks the test-taker "what is the EARLIEST workday for completing the masonry work?" given the number of crew, the number of hours required, and the ratio constant of the crew. Although 80.45 percent of the test-takers correctly answered Question 34, Mr. Uman argues that the question could have been answered without reference to the Builder's Guide to Accounting material and therefore, was misleading. Petitioner's argument is devoid of common sense. QUESTION 38 Exam Question 38 asks the test-taker to identify the activity that "a specialty structural contractor is qualified" to perform. Petitioner's expert, Mr. Uman, again argues that the question is misleading since the credited correct answer "perform non-structural work" is not written verbatim in the provided reference material. To the contrary however, all of the alternative choices are clearly listed in the reference material as activities specifically prohibited by specialty structure contractors. Furthermore, page 2B17 to 61G415.015 of the Contractor's Manual specifically states that: The specialty structure contractor whose services are limited shall not perform any work that alters the structural integrity of the building including but not limited to roof trusses. Respondent's experts, Mr. Collier and Mr. Palm, agree that Question 38 is clear. Moreover, 53.38 percent of test- takers correctly answered the question. While the question appears to require enhanced reasoning skills and is generally more difficult, it is not misleading. Petitioner's assertions are without merit. QUESTION 43 Exam Question 43 asks, "Which accounting method should be used by a contractor if the contractor is unable to reasonably estimate the amount of progress to date on a job or the total costs remaining to fulfill the contract?" Mr. Uman argues that the question is ambiguous and the reference material is "not terribly clear." He further alleges that when a contractor cannot estimate progress, the contractor cannot establish a "completed contract method," the credited correct answer. Respondent's experts disagree. While it is true that Mr. Palm agreed that all of the choices are accounting methods which is inconsistent with Mr. Collier's testimony, the reference material is clear. In fact, 58.65 percent of the test-takers correctly answered Question 43. Petitioner presented insufficient evidence that he should receive credit for his answer or that Question 43 should be invalidated. QUESTION 44 Exam Question 44 provides detailed information regarding a standard form contract and asks, "Based ONLY on the information given above, what is the amount of the current payment due?" In addition, however, as Mr. Uman points out, the standard form referred to in the problem was mistakenly misidentified as Form 201 instead of Form 702. While it is clear that the referenced form was mislabeled, the precise form number was incidental, unrelated to the question, and unnecessary to compute the answer. In fact, Mr. Palm explains that the problem was "just a mathematical exercise." According to Mr. Collier, the question was not misleading, and the incorrect reference was irrelevant. "It's simple math, industry knowledge." Furthermore, Petitioner's answer is clearly incorrect because "he failed to deduct the retainage." Finally, 54.89 percent of the test-takers correctly answered Question 44.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered invalidating only Question 14, re-computing Petitioner's examination score, and dismissing his challenge. DONE AND ENTERED this 1st day of October, 2003, in Tallahassee, Leon County, Florida. S WILLIAM R. PFEIFFER 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 1st day of October, 2003. COPIES FURNISHED: Nickolas Ekonomides, Esquire 791 Bayway Boulevard Clearwater, Florida 33767 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Nancy P. Campiglia, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Robert Crabill, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Petitioner is qualified for licensure as a professional geologist pursuant to the grandfather provision of Section 492.105(2)(c), Florida Statutes (1987).
Findings Of Fact Andrew Minot Nicholson, Petitioner, applied for licensure as a professional geologist pursuant to the grandfather provisions of Section 492.105(2)(c), Florida Statutes. This provision exempts qualifying applicants from taking and passing the examination required of other applicants. The Respondent has stipulated that Petitioner is in all respects qualified for licensure, except for the educational requirements contained in Section 492.105(1)(d)2, Florida Statutes. Petitioner graduated from the Florida Institute of Technology (FIT) in 1973 with a degree in Ocean Engineering. He later returned to FIT and received a master's degree in Business Administration. The courses which Petitioner argues meets the educational requirements for licensure as a professional geologist are as follows (all from FIT) Course Abbreviation Course Title Course Hours Earned ST161 Introduction to Earth and Space Sciences 3 ST313 Materials Science I 3 ST314 Materials Science II 3 OE3505 Ocean Engineering Design 3 ST315 Materials Laboratory 1 0E3583 Marine Geology Laboratory 1 0E4506 Ocean Engineering Design II 3 OE3001 Introduction to Oceanography 3 OE3503 Marine Geology 3 OE3002 Chemical Oceanography 3 OE3500 Fluid Mechanics I 3 OE4507 Soil Mechanics 3 OE4508 Hydroacoustics 3 OE3581 Fluid Mechanics Laboratory I 1 OE3502 Fluid Mechanics II 3 OE3582 Fluid Mechanics 1 Laboratory II OE4502 Optical Oceanography 3 0E4581 Optical Ocean Laboratory 1 OE4433 Solid Mechanics I 3 0E4505 Ocean Waves 3 The above courses, with the exception of Introduction to Earth and Space Sciences, are upper division courses successfully completed by Petitioner. The hours listed are quarter hours. Fifty quarter hours are roughly equivalent to 40 semester hours. Of those courses in finding four above only Introduction to Earth and Space Sciences (ST161), Marine Geology Laboratory (OE3583), Introduction to Oceanography (OE3001) and Marine Geology (OE3503) were accepted by Respondent as meeting the statutory identification as geology courses. Geology is a precise science which relies on knowledge about principles which can only be obtained by taking core courses in geology programs. These core courses include Historical Geology, Structural Geology, Mineralogy, Optical Mineralogy, Petrology, Sedimentology, Geophysics, Geochemistry, Stratigraphy, Economic Geology, Hydrogeology, Field Methods and Paleontology. The courses taken by Petitioner at FIT were primarily oceanographic engineering or oceanography courses and the geological aspects of the courses he took related only to the aquatic aspects of geology. Petitioner's practical experience, which was accepted as adequate by the Board, involved only aquatic geology. If Petitioner's practice of geology were limited to an oceanographic setting, with the training he received at FIT, he would be qualified for licensure. However, there are not geology licenses limited to one specific field of geology. Petitioner contends that because FIT is listed in the Directory of Geoscience Departments by the American Geological Institute, a degree from that school qualifies him to meet the educational requirements for licensure. This document is a directory of academic geoscience departments which include geology departments as well as oceonographic institutes. A listing of the professors at FIT in this directory reveals a heavy orientation of their degrees towards oceanography and ocean engineering as opposed to geology. Licensing of professional geologists came to being in Florida with the enactment of Chapter 87-403 Laws of Florida. Accordingly, applications for licensure have been processed for only one year and Rules have not been adopted which define and interpret various provisions of this statute such as what constitutes "geological courses". Respondent has a proposed rule to provide a more detailed explanation of what criteria an applicant must meet to satisfy the educational requirements for licensure. Such a policy constitutes incipient agency action pending the adoption of rule. Respondent's witness explained that since there are no provisions for limited licenses in geology, the Board has adopted a policy which requires applicants for licensure to demonstrate that they have taken enough core geology courses to have been subjected to nearly all phases of geology. This will permit them, hopefully, to at least recognize problems that may need additional research to resolve, while holding themselves out as licensed professional geologists.
Recommendation It is recommended that the application of Andrew Minot Nicholson for licensure as a professional geologist under the grandfather provisions of Section 492.105(2)(c) Florida Statutes be denied. DONE and ENTERED this 22nd day of December, 1989 in Tallahassee, Leon County, Florida. K.N. AYERS 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 22nd day of December, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-0282 Treatment accorded Petitioner's proposed findings. Proposed findings submitted by Petitioner are accepted and are in general included in the findings submitted by the Hearing Officer except: Petitioner's Exhibit 5. Reject last sentence. "Geological courses" was defined by Respondent's witness. Petitioner's Exhibit 8. Rejected. Respondent looked at the curriculum and the professor's fields of expertise who taught the courses. From these two factors the department concluded the courses were not primarily geology courses, although all of the courses touched slightly on geology. Treatment accorded Respondent' proposed findings. Proposed findings submitted by the Respondent are accepted. COPIES FURNISHED: Clark R. Jennings, Esquire Department of Legal Affairs Suite 1603, The Capitol Tallahassee, FL 32399-1050 Maxwell G. Battle, Jr., Esquire 1460 Beltrees Street Suite A Dunedin, FL 34698 Kenneth D. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Anna Polk Executive Director Board of Professional Geologists 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue Whether the Petitioner is entitled to be licensed as a Professional Surveyor and Mapper, under Subsections 472.013, 472.015, or 472.041, Florida Statutes (Supp. 1994).
Findings Of Fact Petitioner has provided to the Board of Professional Surveyors and Mappers numerous letters and other documents, and a check for the sum of $100 dollars as an application fee for temporary registration as a professional surveyor and mapper. Petitioner has attempted to apply for licensure, under the revised Chapter 472, Florida Statutes , individually and has sought the issuance of a Certificate of Authorization for his business concern: "Mt. Dora Mapping." Petitioner failed to complete an application for licensure on a form provided by the Respondent. Petitioner has failed to provide the correct information necessary for an application to be evaluated under any of the subsections appearing in Chapter 472, Florida Statutes. Petitioner chose not to testify at the formal hearing or otherwise provide any new evidence to be considered by this tribunal, other than documents previously submitted to the Board.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner's application for licensure as a professional surveyor and mapper be DENIED, without prejudice to reapply. DONE AND ENTERED this 1st day of April, 1997, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 1997. COPIES FURNISHED: Robert B. Curtis 940 Gorham Street Mount Dora, Florida 32757 Lealand L. McCharen, Esquire Assistant Attorney General Office of the Attorney General The Capitol, Plaza 01 Tallahassee, Florida 32399-1050 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angel Gonzalez Executive Director Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue for consideration is whether Petitioner should be given additional credit for his answers to the April, 1993 Structural I Engineer Examination.
Findings Of Fact On April 15 and 16, 1993, the then Department of Professional Regulation's Bureau of Testing administered an examination for Structural I Engineer, as a part of the examination for licensure as a Professional Engineer. The fundamentals portion thereof was administered in two sessions. The first consisted of 140 questions and was administered in the morning session. The second consisted of 70 questions and was administered in the afternoon session of the same day. Of the 140 morning questions, 35 were pretest questions being "tried out" for fairness and which were not scored as a part of the examination. In the afternoon session, there were 18 questions in that category. The examination is not scored on a true arithmetic basis. Proportion scoring is utilized. All questions are not of equal difficulty. The test is equated so that the difficulty of the examination does not change from test to test. The pretest questions are included to provide for that. Petitioner's score of 68 was a scaled score. He actually answered correctly 93 of the 210 questions. In the morning session, he answered 47 questions correctly and in the afternoon session, answered 46 questions correctly. In his written request for formal hearing, and again at hearing, Petitioner outlined his objections to the examination process and to certain questions posed therein. Initially, he asserted that the examinee is provided with only vague information prior to the test. He also complains about the review process for which he claims he was totally unprepared because of the paucity of the information provided by the Department. When the Department, by letter dated August 6, 1993, first notified Petitioner of his review appointment, it enclosed therewith a sheet of "guidelines governing examination reviews" which outlined the ground rules for the review process. The day of the review, or just shortly before it, he was also furnished with a set of "review instructions" which outlined the procedure to be followed and the parameters of the review process. Petitioner complains this was totally inadequate and has a "tremendous negative impact" on the examinee, but he gives no specifics and admits he was not denied the opportunity to challenge any questions or to present his position fully. Consequently, it is hard to see where Petitioner was prejudiced by the review process. Of the 10 questions which Petitioner initially challenged, prior to the presentation of any evidence, he agreed that the Department's answer to all but one was correct. However, at hearing, Petitioner challenged questions 17-AM, 79-AM, and 11-AM. With regard to Question 17-AM, Petitioner's answer was "e" - "it may either increase or decrease with time depending on the system." He claims that example 21.1, shown in Lindberg's reference book at page 21-7 is applicable in that it "concludes that a local or isolated system can experience both an increase and a decrease in entrophy", and, therefore, his answer is also correct. Mr. Arnett, on the other hand, concludes that nowhere in Lindberg's reference material is the term "isolated system" used. The correct reference is to thermodynamics and an isolated system which is what the testers were looking for. The examination question and the Lindberg example use entirely different systems. Consequently, the correct answer is "a" - "either remains constant or increases with time", and Petitioner's answer is wrong. His answer would be correct under the planet system, but that is the wrong system to use in this situation. It is so found. As to question 79-AM, the correct answer, according to Mr. Arnett, is "d", "30 million", whereas Petitioner's answer was "e", "45 million." In Mr. Arnett's opinion, the question has enough information presented to allow the candidate to work it without reference to any outside manual. The question deals with Young's modulus - the relationship of unit stress to unit strain. The candidate is required to take readings in the area in proportion, figure unit stress and strain, and using proportionality, arrive at the correct answer of 30 million. The question shows consistency to a certain level where it changes. This shows that at that point, the limit is reached. The question does not relate solely to steel, and this is not relevant to the problem. Mr. Arnett believes Petitioner did not understand that it was not important to know the identity of the material being used. Petitioner claimed that this is an incomplete text. According to Arnett, nowhere is it shown the question relates to steel, and any further reference to steel is irrelevant. Steel was not a part of the problem. According to Mr. Arnett, the question is logical and neither arbitrary nor capricious. It is a fair question and one that a candidate for minimal competency should be able to answer. It is so found. With regard to question 11 - AM, Petitioner claims it is deficient in that the diagram utilized in the examination booklet did not specifically denote by name the location of the pin involved therein. In support of his position, he introduced extracts from sample questions furnished by the National Council of Examiners for Engineering and Surveying, (NCEES), which all utilize the term "pin" in each location where such an instrument is used. Petitioner claims the failure to so denote on this examination renders the question faulty in that it does not provide enough information upon which to base an answer. When Mr. Arnett looked at the question for the first time, he immediately looked to see the type of joint and saw the dot in the semicircle appearing thereon. This is a commonly used method of identifying a pin connection in the engineering profession, and, in his opinion, there is sufficient information to allow the candidate to answer the question. This question, as written, was certified as proper by NCEES, whose sample booklet, utilized for preparation purposed, labels pins. It is found, therefore, that even without the label "pin" at the joint, there was sufficient information for a qualified, properly trained engineer to answer the question properly. Petitioner also asserted that the examination process was too long, and he objected to the inclusion of the pretest questions. He claims that in an endurance test, as here, an age factor is in play. The pretest questions are not identified as such on the examination and as a result, the examinee must endeavor to answer all the questions because he does not know which questions will count and which won't. To rectify this "unfair" situation, Petitioner claims one point should be added to his score for each session in which pretest questions are used. According to both Mr. Arnett and Dr. Klock, the psychometrician, all candidates are advised in advance of the length of the test and of their right to seek any necessary accommodation under the terms of the Americans with Disabilities Act. Petitioner claims he sought an accommodation twice, but failed to present independent evidence of either the existence or nature of his disability. There is no record on file with the Department that Petitioner ever sought an accommodation. All candidates were afforded the same amount of time to take the test and there was no indication that any candidate did not have enough time to complete it. Petitioner's claim is, therefore, without merit. Mr. Focsan also asserts that the scoring system is age biased in the fundamentals area of the test which covers basics taken in university courses and which is usually taken just after graduation when this information is fresh in the mind of the candidate. He asserts the fundamentals examination can be waived in some states for individuals who have extensive experience in engineering. He has 35 years of experience, having been licensed and worked as an engineer in Romania for 27 years before coming to the United States. He is not licensed as an engineer anywhere in this country. He claims the physical demands of the test play a part and older candidates are not in as good a shape as the younger ones. As a result, he states, the test is harder for older candidates. No independent evidence was presented by Petitioner to support this or his contention on age bias and his testimony is insufficient, standing alone, to support a finding to that effect. Petitioner claimed, in addition, that the reference materials allowed to be brought into the examination sessions, (this was an open-book exam), had some misleading or erroneous information in them. Although these errors were, he contends, obvious, and an errata sheet was prepared for examinees taking the April, 1994 examination, none of this was taken into consideration is grading the April, 1993 examination. No errata was available for the test he sat for, and he also contends the time given was too short. Neither Mr. Arnett nor Dr. Klock found any fault with the use of the reference materials procedure in place for the test taken by Petitioner. The examination instructions given each candidate prior to the examination advised that reference materials could be used during the examination, no specific reference was prescribed. Instead, the restrictive language related to the type of material which could not be utilized. Any commonly accepted source other than those prohibited was allowed. Included in the permitted material was the Lindberg manual referred to by Petitioner. It is important to note that reference materials were permitted, not required. In that regard, as of the 1994 examination, no reference material other than that supplied by the National Council is now allowed in the examination room. This change was made to protect against the unlawful removal of examination materials from the examination room concealed in candidates' reference materials. In any case, Mr. Arnett notes there is nothing in the errata material referred to in Petitioner's Exhibit C, which would change any of Petitioner's answers or any correct answer on the 1993 examination, and there is sufficient information in each question to allow the candidate to reach the correct answer. It is so found. Petitioner also objected to the requirement imposed on examinees to use a number 2 pencil instead of a pen, claiming this allowed unauthorized changes to the examinees' answers. Petitioner had no evidence at all to indicate such misconduct had occurred regarding his or that of any other examinee and it is found that such allegations is without merit or foundation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that a Final Order be entered in this matter denying Petitioner herein, Cristofor Focsan, additional credit for his answers to the April 1993 licensure examination developed by the National Council of Examiners for Engineering and Surveying. RECOMMENDED this 6th day of July, 1994 in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of July, 1994. COPIES FURNISHED Cristofor Focsan 6150 36th Terrace, North St. Petersburg, Florida 33710 William M. Woodyard, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angel Gonzalez Executive Director Board of Professional Engineers 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Petitioner should be granted additional credit for one or more examination questions answered by him during the February, 1993 General Contractor Examination.
Findings Of Fact Petitioner, David W. Kradin (Kradin), took the February, 1993 General Contractor Examination and received a score of 65 on the project management portion. A minimum score of 70 is required to pass that portion of the examination. Kradin challenged questions numbered 6, 12, 19 and 30. Joint Exhibit 1 is a composite exhibit of the challenged questions. Joint Exhibit 2 is a drawing included in the examination relating to question number 6. Joint Exhibits 1 and 2 are deemed to be confidential pursuant to Section 455.229, Florida Statutes. Question number 6 required the calculation of the square feet of concrete contact surface for formwork for an elevator pit depicted in Joint Exhibit 2. Kradin challenged the question on the basis that the drawing was unclear because the elevation line appeared to drop slightly in one place. The drawing was sufficiently clear to determine the correct answer. The height of the concrete contact surface could be determined by the height shown on the drawing and the height of the expansion joint. Kradin failed to answer the question correctly because of an error in his calculations. Question number 12, an entry level question, dealt with comparing the estimated cost per cubic yard with the actual cost per cubic yard for excavation work based only on the information in the job cost ledger provided in the question. The job cost ledger contained costs and the net profit made from the sale of spoil. Kradin challenged the question as unclear and imprecise because the job cost ledger contained information on the net profit from the sale of spoil. The parties stipulated that it is improper, incorrect, an error, and a mistake to have job profit in any job cost ledger. Kradin included the net profit when he calculated the actual costs for the project. As a result his answer was incorrect because the profit should not have been included in the calculation of the actual cost for the excavation work. Question number 19 concerned the calculation of the amount of money that should be deducted from a subcontractor's application payment for the cost of worker's compensation insurance premiums. Kradin challenged the question, stating that the question was improper because he read the question to mean that the subcontractor and contractor did not have a written agreement before the work was performed and that the contractor would pay the premium and deduct the premium amount from the subcontractor's pay request. He viewed the scenario set up in the question to mean that the subcontractor was violating the law because he did not have worker's compensation coverage and the general contractor was violating the law because he hired a subcontractor without worker's compensation coverage. Additionally, he read the question to mean that the general contractor was subjecting himself to civil liability because of the lack of worker's compensation coverage. Question number 19 is not a difficult question. The contractor and subcontractor have agreed that the general contractor will provide worker's compensation coverage for the work done and will deduct the amount of the coverage from the subcontractor's application for pay. The question gives the amount of the pay request and the cost of the worker's compensation insurance per $100 worth of billing. The candidate is supposed to calculate the amount that will be deducted. The question does not deal with the legalities of the arrangement between the subcontractor and general contractor nor would a reasonable person read the question as such. Kradin's answer was not a correct calculation of the amount to be deducted. The examination is an open book examination and the candidates are allowed to bring specified reference materials with them, including the Contractor's Manual. Question number 30 deals with material found in the Contractor's Manual, relating to project schedules. Here, the question asks the candidate to pick out the entity not listed in the manual. Kradin picked out an entity which was listed in the manual.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the challenge by Petitioner requesting that he be awarded a passing grade for the Project Management portion of the February, 1993, General Contractor Examination be DENIED. DONE AND ENTERED this 23rd day of November, 1993, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 23rd day of November, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3936 To comply with the requirements of Section 120.59(2), Florida Statutes, the following rulings are made on the Respondent's proposed findings of fact: Respondent's Proposed Findings of Fact Paragraphs 1 and 2 accepted. Paragraphs 3, 4, 5 and 6 accepted in substance. COPIES FURNISHED: David W. Kradin 1525 J Spring Harbor Drive Delray Beach, Florida 33445 Vytas J. Urba, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Jack McRay Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Richard Hickok Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467
Findings Of Fact The National Council of Examiners for Engineering and Surveying (hereinafter "NCEES") writes and otherwise prepares the examinations for candidates seeking engineering licenses in 55 states and jurisdictions. The examinations are then administered by the states and jurisdictions which constitute NCEES' member boards. Respondent, State of Florida, Board of Professional Engineers, is a member board and uses NCEES' examinations. The Fundamentals of Engineering (hereinafter "FE") examination is given twice a year, in April and in October. The FE examination measures the basic knowledge a candidate has acquired in a bachelor degree program in the first two years during which the candidate takes basic engineering and science courses. Passage of the examination does not result in licensure as an engineer; it results in either an "engineer intern" or an "engineer in training" certificate which shows that the examinee has completed the necessary educational requirements to sit for that eight-hour examination and to have passed it. The next step is that a successful candidate will then complete four years of experience and then pass a principles and practices examination called the "PE" examination in order to then be licensed as a professional engineer. The FE exam is a minimal competency examination. Questions for the FE examination are written by individuals and are then reviewed by a committee. That committee is composed of registered professional engineers who are practicing engineers and engineers from the academic world, from consulting firms, and from governmental entities. Each question or item on the examination is reviewed by at least 12 to 15 individuals during the review process which takes from one to one and a half years. As part of the development process, individual items appear on examinations as pre-test questions. The purpose of using pre-test questions is to determine the characteristics of that specific item, as to how hard or easy the item is when used on the target population (candidates for the FE examination), and to verify that minimally competent candidates can answer the test item correctly. If pre-test questions perform as expected, they are used on subsequent examinations. If they do not perform adequately, the questions go back to the committee to be changed or to be discarded. Pre-test questions on examinations are not scored, and whether an examinee correctly answers that question is irrelevant to the raw score or final grade achieved by that candidate on the examination. Pre-test questions are distributed proportionately throughout the examination, and no subject area on the examination ever consists of only pre-test questions. Pre-test questions are used by other national testing programs. No unfairness inures to candidates from the presence of pre-test questions on an examination for two reasons. First, all candidates are treated equally. Candidates do not know that the examination contains pre-test questions, and, even if they did, they do not know which questions are pre-test questions and which questions will be scored. Second, the length of the examination itself is not increased by adding pre-test questions. The examination has the same number of questions whether pre-test questions are included or not. In the actual exam preparation, NCEES uses American College Testing and/or Educational Testing Service as contractors. The contractors pull the proper number of items in each subject area from the item bank and assemble the examination which is then sent to the NCEES committee of registered professional engineers to see if changes in the examination are necessary. Once approved, the contractor then prints the examination booklets and sends them to the member boards to administer the examination. Answer sheets from an exam administration are transmitted to the contractor for scanning and statistical analysis. The contractor then recommends a passing point based on a scaling and equating process so that future exams are no easier or harder than past exams. When NCEES approves the passing point, the contractor sends the examination scores or results to the member boards. When the examination is changed in some fashion, a new base line or pass point must be established to ensure that the new examination remains equal in difficulty to past examinations and remains a good measure of competency. The new examination is referred to as the anchor examination. The October, 1990, FE examination was an anchor exam. The member boards of NCEES determined that the October, 1993, FE examination would be changed to a supplied reference document examination, meaning that the candidate during the examination could use only the supplied reference handbook, a pencil, and a calculator. Candidates would no longer be able to bring their own reference materials to use during the examination. One of the reasons for the change was fairness to the candidates. The FE examination was not being administered uniformly nationwide since some member boards prohibited bringing certain publications into the examination which were allowed by other member boards. Accordingly, it was determined that NCEES would write and distribute at the examination its Fundamentals of Engineering Reference Handbook, thereby placing all candidates nationwide on an equal footing in that all examinees would be using this same reference material of charts, mathematical formulas, and conversion tables during the examination, and no other reference materials would be used during the examination itself. In August of 1991, NCEES approved the concept of a supplied reference handbook, and a beginning draft was sent to the FE sub-committee of the examination committee for review. The individual members of the sub-committee actually took two FE examinations using the draft of the supplied reference document to ensure that all material needed to solve the problems on an FE examination was included in the reference document and that the document was accurate. On a later occasion the committee took the examination that would be administered in October of 1993 using a subsequent draft of the supplied reference handbook. The last review of the handbook occurred in February of 1993 when the committee used that draft to review the October 1993 examination for the second time, and NCEES' Fundamentals of Engineering Reference Handbook, First Edition (1993) was finished. When NCEES received its first copies back from the printer, it mailed copies to the deans of engineering at 307 universities in the United States that have accredited engineering programs for review and input. As a result, NCEES became aware of some typographical and other errors contained in that document. In July of 1993 NCEES assembled a group of 12 individuals for a passing point workshop for the October 1993 a/k/a the '93 10 examination. The group consisted of three members of the committee, with the remainder being persons working in the academic world or as accreditation evaluators, and recent engineer interns who had passed the FE examination within the previous year and were not yet professional engineers. That group took the '93 10 FE examination using the first edition of the Handbook and then made judgments to determine the pass point for that examination. During that two day workshop, the errors in the Handbook were pointed out to the working group so it could determine if any of the errors contained in the Handbook had any impact on any of the problems contained in the '93 10 examination. The group determined that none of the errors in the Handbook impacted on any test item on the '93 10 FE examination. In September of 1993 subsequent to the passing point workshop, the '93 10 FE exam and the first edition of the Handbook went back to the committee of registered professional engineers for a final check, and that committee also determined that none of the errors in the Handbook would have any impact on the questions in the '93 10 FE examination. An errata sheet to the first edition of the Handbook was subsequently prepared but was not available until December of 1993. In September of 1994 the second printing of the Handbook was completed, and that version incorporated the changes contained on the errata sheet. Of the errors contained in the first edition of the Handbook, only one error was substantive; that is, one mathematical equation was wrong. However, no item on the '93 10 FE exam could be affected by that mathematical error. The remaining errors were typographical or simply matters of convention, i.e., errors in conventional terminology and symbols found in most textbooks such as the use of upper case instead of lower case or symbols being italicized as opposed to being non-italicized. Candidates for the '93 10 FE examination were able to purchase in advance as a study guide, a Fundamentals of Engineering sample examination which had its second printing in March of 1992. The sample examination was composed of questions taken from previous FE exams which would never be used again on an actual FE examination. The sample examination consisted of actual test questions and multiple choice answers. The sample examination did not show candidates how to solve the problems or work the computation, but merely gave multiple choice responses. Errors were contained on the two pages where the answers to the sample examination were given. The answer key was wrong as to two items on the morning sample examination and was wrong for all of the electrical circuit items, one of the subject areas included in the afternoon sample examination. An errata sheet was prepared and distributed in September of 1993 to those who had purchased the sample examination. Petitioner took the '93 10 FE examination, which contained 140 items during the morning portion and 70 items during the afternoon portion. Approximately 25 percent of the questions on the examination were pre-test questions. The minimum passing score for that examination was 70, and Petitioner achieved a score of only 68. Accordingly, Petitioner failed that examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Petitioner failed to achieve a passing score on the October 1993 Fundamentals of Engineering examination and dismissing the amended petition filed in this cause. DONE and ENTERED this 14th day of April, 1995, at Tallahassee, Florida. 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 14th day of April, 1995. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact numbered 1-5 and 8 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 7 has been rejected as being subordinate to the issues herein. Petitioner's proposed findings of fact numbered 6 and 9 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony or conclusions of law. Respondent's proposed findings of fact numbered 1-15 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 16 has been rejected as being unnecessary to the issues involved herein. COPIES FURNISHED: Wellington H. Meffert, II Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Dorian Kenneth Zinck, pro se 521 Beech Road West Palm Beach, Florida 33409 Angel Gonzalez, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0755 Lynda Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times pertinent to the matters contained herein, Respondent was licensed as a professional land surveyor in Florida and held license No. LS 0002934. On October 9, 1984, the Petitioner, Board of Professional Land Surveyors, after an informal hearing at which Respondent was present, entered a Final Order finding that he had, in several instances in the practice of professional land surveying, failed to perform in accordance with the minimum technical standards for land surveying and ordered his license to be suspended for 6 months; that he pay a $500.00 fine within 30 days of the Order; and that he submit a series of surveys and field notes for the review of the Board over a period of time subsequent to the reinstatement of his license. Respondent contends he agreed to an informal hearing because of recommendations from a representative of the Department of Professional Regulation's, (DPR), local investigative office. However, he was present at the hearing, was afforded an opportunity to present matters in his behalf, and through counsel, filed an appeal to the 4th District Court of Appeals of the Final Order in question which appeal, he subsequently dismissed. Respondent failed to pay the $500.00 fine on time as required. He contends this was because he had appealed the Final Order and was only one month late. Respondent also failed to file the required sets of surveys after the reinstatement of his license. The first was 6 months late and he cannot give a reason for that other than he was in mild shock as he felt he was a victim of "judicial error." His attorney was appealing the Final Order and he didn't pay attention to the dates. The 4th set of surveys was due in February, 1987 and has not been submitted as of this date. He contends it was not his intention to drag his feet in these submissions. After receiving the reviewer's criticisms of his earlier submissions, he felt they were not in keeping with the minimum standards and he requested clarification. He claims this is the reason for the delay but this excuse is not persuasive. His comment that he failed to pay attention to the dates for compliance with the requirements of the Final Order seems to be somewhat indicative of his attitude toward the practice of land surveying as will be seen from the evidence as discussed below. Consistent with the Board's Order, however, Respondent submitted several surveys which were considered to be of poor quality. The first set was returned with numerous negative comments and the third set was returned for further preparation and correction to prevent "further disciplinary action." The second set was considered to be "in substantial compliance with the terms of the [Board's] Final Order." Specifically identified for comment were surveys done by the Respondent for Mark and Betty Sivik, Carolyn Riddle, Eugenio Gonzalez, Teresa and Dane Curry, and Silvia Garcia. As to the individual surveys, the following discrepancies were noted: Sivik field notes showed no measurements made by Respondent. field notes showed no angles turned by Respondent. field notes showed no relationship to fractional corners. Riddle field notes show no E-W measurement by Respondent. field notes show no angles turned by Respondent. no plat was submitted with the survey. Gonzalez field notes do not show complete measurements by Respondent. field notes do not show angles turned by Respondent. field notes do not show relationship to fractional corners. field notes show a fence on three sides but the survey does not. Curry field notes do not show angles turned by Respondent. there is a .9 foot discrepancy as to one line between field notes and the survey with no explanation. as a result of this it cannot be determined if the survey is accurate. Garcia measurements to corners shown in field notes are not shown on survey. Respondent did not submit a plat without which it cannot be determined if the survey is complete or accurate. (Without the appropriate field notes, there is no way to tell if the survey is accurate, complete, or in accord with the legal description of the property.) In respect to all of the above surveys, none states on its face the type of survey it is. Respondent contends, in this regard, that his use of the letters "P.L.S.", (Professional Land Surveyor) after his signature indicates all are land surveys. This is not sufficient identification since professional land surveyors do various different types of surveys including land surveys, topographical surveys, reestablishment surveys, and the like. Respondent takes exception to the Board reviewer's comments about and approach to his surveys. As to the issue of angles, he contends that the minimum standards applied by the Board require only that the minimum angles shall be listed and do not require that all angles be turned in the field. He contends that the angles in question were a matter of record in his office. Mr. Cole, the Boards expert, agrees, stating it is not necessary to turn every angle but enough should be turned to insure an accurate description of the property and to verify the actual angles. There are other ways of verifying angles than turning them, but in Respondent's field notes, there was insufficient evidence to show any type of verification of the angles done by others previously. As to the discrepancies between field measurements and the legal descriptions in some cases, Respondent nonetheless contends they are all within standards. Respondent's approach here is somewhat cavalier. Any discrepancies which exist must be shown. The purpose of a survey is to show the current status of the property and it is improper and ineffective to rely solely on the previous record. To list discrepancies does not clutter up the survey nor is it likely to confuse. A failure to show them could well create major problems for a future user of the survey. The .9 foot discrepancy, described by the Respondent as well within the 1:5,000 error standard, is incorrectly described. It is more like an error of 1:200 and is, therefore, not insignificant. It should have been commented on. The survey done for the Currys can readily be classified as a topographical survey as it describes elevation in at least two places. Therefore, it should have been identified as a topographical survey on the face of it, but this is a minor discrepancy. The fence running across the back of the Gonzalez property should have been identified as such by the use of appropriate x's on the survey. It was not. Respondent has been in the private practice of surveying since he passed the state examination in February, 1976. He feels that the Board's case is based on the use of a hypothetical survey to establish standards against which his work was compared. The minimum standards set out in the statute are what, he feels, should control as they speak for themselves. He has always tried, throughout his years in practice, to protect his clients, and to his knowledge, his work has never cause anyone to lose money. He defines precision as the way that a line or angle is measured and accuracy as the manner in which the finished drawing portrays that there are or are not problems in the subject of the survey. With regard to the attack on his field notes, Respondent contends that the minimum standards merely call for field notes. Their sufficiency is determined by the standards of the practice in the community. He believes his notes contain measurements, calculations and ancillary information sufficient to show the required identifying information. The laws that govern surveyors' performance require many factors to be considered such as encroachment, senior rights, acquiescence and adverse possession, and the Respondent urges that in the interest of simplicity for the benefit of the users of the survey, it is necessary to reduce the quantity of evidence on the survey to the minimum necessary to allow it to be used effectively, not for the convenience of the state examining board. If there are no problems, then there is nothing else to show and his backup office records are adequate. Though Respondent feels the Board's criticisms of his notes are irrelevant, the better weight of the evidence is that they are not. Though Respondent contends his work in all cases exceeds the requirement for error, (1:5,000; 1:7,500; and 1:10,000 as appropriate), the error in the Curry survey shows his possible lack of understanding of the rules. He considers himself to be a mixture of the textbook and practical surveyor applying his extensive practical field experience to the textbook requirements. The evidence indicates, however, he does not always do so with the required degree of accuracy and skill. Respondent agrees with the 20 minimum standards set out in Rule 21HH- 6.003. They relate to all surveys and, he believes, should be followed. They constitute the community standard and a failure to follow them would be a failure to follow the community standards. His quarrel is not with the rule but with the agency's interpretation and alleged expansion of its own rule.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent's license as a registered land surveyor be suspended for one year and that upon reinstatement his license be placed on probation for five years under such terms and conditions as imposed by the Board as will insure current and continuing review of his activities within the profession. RECOMMENDED this 24th day of August, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 24th day of August, 1987. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings pursuant to Section 120.59(2), Florida Statutes, upon the proposals of the parties. Petitioner's Proposed Findings of Fact (FOF). 1. Accepted in FOF 1. 2. Accepted in FOF 2. 3 - 7. Accepted in FOFs 2 and 4. 8. Accepted. 9 - 11. Incorporated in FOF 4. 12, 13. Accepted. 14, 15. Incorporated in FOF 4. 16. Incorporated in FOF 5. 17, 18. Accepted. 19, 20. Incorporated in FOF 5. 21 - 30. Incorporated in FOF 6. 31 - 33. Accepted. 34. Incorporated in FOF 7. 35 - 37. Incorporated in FOFs 8 and 9. 38, 39. Incorporated in FOF 16. 40. Redundant to Proposed FOF 2. COPIES FURNISHED: ALLEN R. SMITH, JR., EXECUTIVE DIRECTOR DEPARTMENT OF PROFESSIONAL REGULATION DIVISION OF LAND SURVEYORS 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 DAVID R. TERRY, ESQUIRE DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32301 KENNETH O. HART 3198 RIDDLE ROAD WEST PALM BEACH, FLORIDA 33406 VAN POOLE, SECRETARY DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 JOSEPH A. SOLE, GENERAL COUNSEL DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 ================================================================= AMENDED AGENCY FINAL ORDER ================================================================= BEFORE THE BOARD OF PROFESSIONAL LAND SURVEYORS DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, DOAH CASE NO. 87-2158 vs. DPR CASE NO. 0078982 KENNETH O. HART, Respondent. /
The Issue The issue in this case is whether Petitioner is entitled to credit for answers scored as incorrect on questions she challenged on the March 2001 Practice of Geology and Fundamentals of Geology Examinations.
Findings Of Fact Based on the evidence and the testimony of witnesses presented and the entire record in this proceeding, the following findings of fact are made: In March 2001, Petitioner, Susan Sitkoff, took the Practice of Geology and the Fundamentals of Geology examinations; these are multiple-choice examinations up to four hours in length. These written licensure examinations are designed to assess a candidate's knowledge and skills to practice professional geology. The National Association of State Boards of Geology ("the Association") provides these national examinations which are used by Respondent and its Board of Professional Geologists for licensure examinations. In addition to providing the actual examinations, the Association conducts analyses to ensure examination validity. In order to ensure test fairness and quality, the Association follows Standards for Educational and Psychological Testing (1999), published by the American Educational Research Association, the American Psychological Association, and the National Council on Measurement in Education. Test questions are written and reviewed by panels of subject matter experts who are professional geologists. Statistical analyses are reviewed by the subject matter experts so that any substandard test questions can be eliminated before generating candidates' final scores. These statistical analyses also validate the individual examination questions and answers. Each test question is submitted to four reviews by the panels of subject matter experts. These reviews ensure that each question: (1) has one correct or best answer; (2) is related to the practice of the profession; (3) is related to public protection; (4) possesses language that is clear and direct; (5) is written at an entry-level of difficulty; (6) adequately describes a problem or situation; and (7) is free of trickery. On the March 2001 examinations, nationwide (23 states), 462 candidates completed the Fundamentals of Geology examination and 372 completed the Practice of Geology examination. The examination results and a variety of statistical analyses were reviewed by a panel of subject matter experts on April 6 and 7, 2001. The reviews indicated that the examinations performed very well and exhibited a high degree of internal consistency. Petitioner was notified by the Bureau of Testing, Department of Business and Professional Regulation, on May 18, 2001, that she had earned a failing score of 67 percent on the Fundamentals of Geology examination, and a failing score of 68 percent on the Practice of Geology examination. A score of 70 percent was required to pass each examination section. On August 6, 2001, Petitioner reviewed her examination in Orlando, Florida. By letter to the Bureau of Testing, Department of Business and Professional Regulation, dated August 16, 2001, Petitioner formally filed her petition for a formal hearing to challenge her examination results. After initially indicating that she would challenge 52 questions, Petitioner came to the hearing to challenge 17 questions. Petitioner challenged questions 21, 35, 53, and 60 on the Fundamentals of Geology examination. At the hearing, Petitioner withdrew her challenge to questions 26, 78, 79, 91, and 98 on the Fundamentals of Geology examination. Petitioner challenged questions 62 and 71 on the Practice of Geology examination. At the hearing, Petitioner withdrew her challenge to questions 15, 26, 31, 53, 57, and 68 on the Practice of Geology examination. In the discussion related to the challenge of question 21 on the Fundamentals of Geology examination, Petitioner indicated that she believed "b," "c," and "d" were all correct answers. She answered "c." Respondent indicated that "b" was the correct answer. Petitioner’s expert witness opined that answer "c" was not the most correct answer. Regarding question 35 on the Fundamentals of Geology examination, Petitioner's expert witness opined that "d" (Petitioner's answer) was a misleading, but agreed that a careful reading indicated that "c" was the correct answer. Respondent's expert witnesses opined that this question was not a “trick question” [or answer] but rather used a distractor answer to deter candidates without the necessary knowledge to answer the question. Seventy-two percent of the candidates answered this question correctly on the examination. There was an in-depth discussion of the answers to question 53 on the Fundamentals of Geology examination. Petitioner submitted that her answer, "b," was the more correct answer. Petitioner's expert opined that "a," "b," and "c" were all correct answers. Respondent's expert geologist opined that only "c" was the correct answer. The testimony revealed that 51 percent of the candidates taking the examination answered "b," a higher ratio than for the correct answer "c." Respondent's expert psychometrician, Dr. Warner, indicated that the panels of subject matter experts had specifically reviewed this question due to the fact that more candidates chose the "distractor" answer than the "correct" answer. The panels of subject matter experts confirmed that "c" was the correct answer. Question 60 on the Fundamentals of Geology examination involved a diagram, which Petitioner felt was unclear in that she was unable to determine if it was a plane view or a top view. She answered "c"; the offered "correct" answer was "a." Respondent's expert geologist reported that the diagram in the question was, in fact, a structure contour map on the top of a limestone bed and the diagrams revealed a single bed. Seventy- seven percent of the candidates answered the question correctly. Petitioner indicated that she did not believe there was a correct answer to question 62 on the Practice of Geology examination and further stated that "unless you work with inclinometers for a living it would be difficult to answer this question correctly." Petitioner's expert indicated that he did not have much experience in the area. Respondent's expert geologist opined that "c," not "d," as selected by Petitioner, was the correct answer. He also indicated that he confirmed his opinion with another expert geologist from the panel of subject matter experts. Question 71 on the Practice of Geology examination addresses federal regulations in the assessment of environmental sites. Petitioner indicated that "anyone doing a Phase I [environmental assessment] would have used the ASTM guidelines" which, unfortunately, guided her to an incorrect answer involving an “ASTM circular.” Petitioner conceded that, “. . . they put federal regulations in here which would exclude that answer.” In no instance during her presentation did Petitioner demonstrate that any examination question she challenged or the "correct" answer, as offered by Respondent, was faulty, arbitrarily or capriciously worded or graded, or that she was inappropriately denied credit for any answer she gave.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered confirming Petitioner’s examination score and dismissing her challenge. DONE AND ENTERED this 24th day of June, 2002, 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 24th day of June, 2002. COPIES FURNISHED: Susan Sitkoff 14024 Colonial Grand Boulevard Apartment 708 Orlando, Florida 32837 Charles F. Tunnicliff, Esquire Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Sherry Landrum, Executive Director Board of Professional Geologists Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue for consideration in this case is whether Petitioner should be granted extra credit for questions numbers 320, 321, 322, and 323, for which he gave allegedly incorrect answers, on the October 1996, Environmental Engineer Examination administered by the Department.
Findings Of Fact At all times pertinent to the issues herein, the Board of Professional Engineers was the state agency responsible for the professional testing and licensing of professional engineers, and the regulation of the engineering profession in Florida. Petitioner is a graduate engineer, specializing in environmental engineering, who took the Environmental Engineer Examination administered by the Bureau on October 25 and 26, 1996. By Examination Grade Report dated February 17, 1997, the Bureau notified Petitioner that he had achieved a score of 67.00 on the examination; that a minimum score of 70.00 is required for passing the examination; and, therefore, that Petitioner had failed the examination. Petitioner thereafter filed an appeal of the examination results, challenging the grading of questions numbers 320, 321, 322, and 323 of the examination in question. Question 320 tests the candidate’s ability to understand the characteristics of pumps both in series and parallel. The engineering principle involved is Bernouli’s Theory. The problem is in two parts, A and B. The first part asks which of two impellers are in the pump, based on a given set of data using Bernouli’s Principle. Petitioner answered Part A correctly. Part B repeats Part A, except that the candidate has to recognize the difference between series and parallel pumps, and Petitioner did not get the question correct. The National Council of Examiners for Engineering and Surveying (NCEES) published a scoring plan for each question on the examination. The maximum award a candidate can receive on this question is “10.” The NCEES’ scoring plan for this question provides a score of “4,” which Petitioner received, when the candidate gets one part of the question correct and one part incorrect. To earn a score of “6” for the question, the candidate must present a correct parallel pump analysis, and in this case, Petitioner doubled head pressure instead of flow. Question 321 also consists of two parts and deals with a sewer which is facing overload based on population projections. A relief sewer is proposed and the candidate must do two things. He must first analyze the flow of the existing sewer, and then determine what the invert of the new sewer line would be at the outer end of that sewer In this instance, Petitioner got the second part of the problem correct but not the first. Petitioner started off correctly, but then incorrectly used a piece of information that was given. The problem must be solved using Manning’s Equation, and then checked for scouring velocity. Petitioner used the minimum velocity in determining what the flow is and, according to Mr. Hutchinson, this is not the way to solve the problem. Hutchinson suggests that in solving the problem, the candidate first finds out how much flow will exist in the years ahead by knowing the population and the flow per capita. Then, using Manning’s Equation, the candidate calculates the flow the existing sewer can take. Subtracting the second from the first, the answer is the flow the new pipe will have to be designed for. In the examination question, all the required information is given except the diameter, which is determined through the use of Manning’s Equation. Once that is done, the candidate must check the new scouring velocity. This is done by calculating the velocity in the new sewer to be sure it is in excess of the number given in the problem statement. Here, Petitioner took the minimum scouring velocity and used that figure to calculate the size of the pipe. As a result, he arrived at the wrong answer of ten inches, when the correct answer was twenty-four inches. Petitioner was awarded a grade of “4” for his answer to problem number 321. According to NCEES’ Scoring plan, a “4” reflects the candidate got only one of the two parts correct. Question 322 deals with a hazardous waste incinerator. The first part of the problem calls for a determination of the amount of air needed to complete combustion if the additional air (excess air) is 100 percent. This means twice the air needed to perfectly combust the material. The candidate must first put down the chemical equation, all the constituents of which are given in the problem. Then, the candidate must balance the equation, and for 100 percent excess air, one multiplies the air input by a factor of two. The second part of the problem asks for the amount of water necessary to quench the gasses. Petitioner did not correctly balance the chemical equation called for in the first part even though he made an effort, and he was given some credit for trying. His answer to the second part was twice what it should have been. Since Petitioner did not do either part of the problem correctly, the award of “4” for his answer was, in Hutchinson’s opinion, generous. Question 323 involves a situation wherein a vehicle which gives off carbon monoxide is used inside a facility. Some of the workers have experienced dizziness. Readings are given for the carbon monoxide levels. The candidate is asked to calculate several factors. The first is what the eight-hour time weighted exposure is. There are certain limits involved. The second is how much ventilation air would be necessary to reduce the concentration to a lower stipulated level in one hour. The size and other specifics of the facility are given. The third part of the question is a non-mathematical essay question wherein the candidate is asked to define the disadvantages of having a combustion engine internal to a facility. The fourth part of the problem asks why mere dilution of the pollution is not the solution to the problem. Petitioner answered the first part of the problem correctly. He overstated the amount of air called for in part two of the problem by a magnitude of two. Petitioner answered the third part of the problem correctly, but in the fourth part, provided only one of the two reasons called for. He was awarded a score of “4” for his answer to this problem. The NCEES’ scoring plan indicates a score of “4” is appropriate when the candidate gets the first part correct; commits a logic error in the second part; and provides only two of three answers called for in the combined third and fourth parts. This is exactly what Petitioner did. In Mr. Hutchinson’s opinion, none of the problems in issue here were beyond the scope of knowledge that should be expected of a candidate for licensure. In addition, the questions as written are not ambiguous or unclear, and they give the candidate enough information to properly answer the questions. The examination is not a test of a candidate’s ability to do mathematical calculations. The examiners look at the ability to calculate as something which a high school student should be able to do. What is being tested is the candidate’s understanding of the engineering particulars and concepts. For example, in problem 320, the examiners are testing the candidate’s understanding of the difference between parallel flow and series flow for a pump. Under the scoring plan, that issue carries as much or more weight that the ability to solve the mathematics. Petitioner did not demonstrate the requisite understanding. The examination is structured so as to administer four questions in the morning session and four questions in the afternoon session. The examination is made up of questions which are submitted by members of that committee of the NCEES which drafts the examinations. The proposed questions are tested by committee members who solve each question in no more than twenty minutes. If the committee members judge the question to be appropriate and acceptable, it goes into a question bank and is subsequently reviewed several times before it is first incorporated in an examination two or more years later. In each question, the subject matter and the language of the question are reviewed to determine that there is no trick information involved; that all information necessary to correctly solve the question is incorporated; and that the scoring plan is valid. If any changes are made to a question during the evaluation time, two additional independent reviews are required. The examination is given nation-wide at the same time. At that time, the NCEES selects fifty to sixty tests at random, which are sent in for scoring. Of those, ten are selected and sent to a monitor to insure uniformity of scoring and appropriateness of the scoring plan. Once the examination is determined to be satisfactory, fifteen expert judges are called in to evaluate the fifty to sixty tests and to review them for demonstrated minimum competence by the candidates whose examinations are under scrutiny. At that point, a minimum numerical score is reached, and the remaining tests are graded. In his cross examination of the Respondent’s expert Mr. Hutchinson, regarding not only each of the examination problems in issue but also the methodology of the development and grading of the examination, Petitioner prefaced his questions by extensive, comprehensive statements of his position as to the matter at issue. Notwithstanding frequent and repeated reminders by the Administrative Law Judge that the matters being expressed were unsworn and not testimony, and therefore could not be considered as evidence, Petitioner persisted. The majority of his comments and arguments made in his Proposed Findings of Fact and Conclusions are based on that material and it is impossible for the undersigned to recommend Petitioner be granted the relief he proposes, based on the evidence admitted at hearing, as his testimony, when received, was not persuasive. Petitioner also submitted at hearing, as his Composite Exhibit 1, a series of documents which, for the most part, include personal information regarding his credentials, and copies of the pleadings, orders, and correspondence which make up the case file. Also included was a letter from Petitioner’s supervisor testifying to his hard work, industry, and professionalism; and a breakdown of the raw scores he achieved on the examination in question. None of this has a significant bearing on the merits of his challenge.
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 in this matter denying Petitioner additional credit for his answers to problems 320, 321, 322, and 323, on the October 1996 Environmental Engineer Examination. DONE AND ENTERED this 17th day of February, 1998, in Tallahassee, Leon County, Florida. _ ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 1998. COPIES FURNISHED: Scott D. Walker 14535 Bruce B. Downs Boulevard Number 918 Tampa, Florida 33613 R. Beth Atchison, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angel Gonzalez Executive Director Board of Professional Engineers 1940 North Monroe Street Tallahassee, Florida 32399-0792
