Findings Of Fact Petitioner, Carlos Martinez Mallen, is an applicant for licensure by endorsement to become a professional engineer in the State of Florida. He filed his application for licensure with the Florida Board of Professional Engineers (hereinafter "Board") in January 1988, relying on the facts that he was licensed in Spain approximately 25 years ago and has approximately 30 years of experience as a professional engineer. The Board subsequently determined that he could not be considered for licensure by endorsement. Petitioner has never taken a licensing examination in the United States which is substantially equivalent to the examination required for licensure by Section 471.013, Florida Statutes, and described in Chapter 21H, Florida Administrative Code. Further, Petitioner has never been licensed in any state or territory of the United States, although he does hold a license to practice engineering in Spain. On the other hand, Petitioner's engineering experience record shows that he has considerable experience in the practice of engineering which would meet the additional experience requirements of Section 471.013, Florida Statutes. The Board, having determined that Petitioner does not qualify for licensure by endorsement, performed an analysis of Petitioner's application to determine whether his degree from the University of Madrid was an engineering degree which might qualify him to sit for the 1icensure examination and to ascertain if Petitioner could obtain licensure by that alternative method. An analysis was made by the Board's Education Advisory Committee to determine whether the curriculum for Petitioner's degree from the University of Madrid met the requirements of Rule 21H-20.006, Florida Administrative Code. This analysis was specifically directed to determine whether Petitioner's curriculum conformed to the criteria for accrediting engineering programs set forth by the Engineering Accreditation Commission of the Accreditation Board of Engineering and Technology, Inc., (hereinafter "ABET"). The analysis of Petitioner's degree shows that, when compared with ABET criteria, Petitioner's engineering education was deficient four semester hours in mathematics and included no courses in engineering design, sixteen semester hours of which are required by ABET criteria. Further, Petitioner's education included no computer application of engineering design programs, a mandated requirement by ABET standards. Petitioner has never taken any of these courses subsequent to receiving his degree in Spain. Petitioner's degree, rather than being an engineering degree, is the equivalent of a bachelor's degree in chemistry. Petitioner's degree is significantly deficient in required course areas, so that it does not meet the Board's criteria. Petitioner thus cannot be considered as an applicant for examination since in order to sit for the professional engineer examination in the State of Florida, one must have an engineering degree which meets standards acceptable to the Board. Finally, Petitioner's background was reviewed to determine whether he could be considered for licensure under a different provision for licensure by endorsement. Petitioner has never held a professional engineer registration or license from another State of the United States. The Board has never interpreted the word "state" found in the statutes and rules regulating the licensure of professional engineers in Florida to include foreign counties. Petitioner is not a graduate of the State University System. Petitioner did not notify the Department before July 1, 1984, that he was engaged in engineering work on July 1, 1981, and wished to take advantage of a temporary educational waiver. As a result of the Board's review of all avenues to licensure available to Petitioner, Petitioner's application was denied either to sit for the examination to become a professional engineer or to be licensed by endorsement, unless and until he meets the educational requirements to sit for the professional engineer examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application for licensure by endorsement and further finding that Petitioner's educational background does not meet the requirements necessary to take the examination to become licensed in the State of Florida. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of March, 1990. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-5973 Petitioner's proposed paragraphs numbered 0.00, .10, .20, .30, .40, .50, 1.10, 1.20, 2.20, 3.10, 3.20, 3.40, 3.60, 4.10, 4.11, 4.13, 5.00, 5.30, 5.40, 5.41, 5.50, 5.51, 5.52, 6.00, 6.10, 6.20, 6.21, 6.22, 6.23, 6.24, 6.25, 6.26, 7.00, 7.40, and 7.50 have been rejected as not constituting findings of fact but rather as constituting argument or conclusions of law. Petitioner's proposed paragraphs numbered 1.21, 3.00, 4.00, 7.10, 7.20, 730, 7.41, 7.42, and 7.43 have been rejected as being contrary to the weight of the evidence in this cause. Petitioner's proposed paragraphs numbered 1.22 and 2.10 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed paragraphs numbered 3.30, 3.50, 3.70, 4.12, 4.20, 5.10, 5.11, and 5.20 have been rejected as being irrelevant to the issues involved in this proceeding. Respondent's proposed findings of fact numbered 1-8 have been adopted either verbatim or in substance in this Recommended Order. COPIES FURNISHED: John J. Rimes, III, Esquire Office of Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32399-1050 Carlos Martinez Mallen 33C Venetian Way #66 Miami Beach, Florida 33139 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Rex Smith, Executive Director Department of Professional Regulation Board of Professional Engineers 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues presented are: (1) whether or not Respondent wrongfully eliminated materials from the Candidate/Petitioner during the April 19, 1990 engineering examination, and if so, (2) whether the Candidate/Petitioner received a failing grade because the materials were wrongfully eliminated.
Findings Of Fact The Petitioner (#100021) received a score of 69.0 on the Professional Engineer Fundamentals Examination given April 19, 1990. A minimum passing score was 70.0 on the examination which is written by National Council of Engineering Examiners and graded by Education Testing Service. (Transcript Pages 36 and 39) Prior to the April 1990 examination, the Board sent each candidate a letter, dated December 18, 1989 (Exhibit P-1) (Transcript Page 9 and 12), which said, "No review publications directed principally toward sample questions and their solutions of engineering problems are permitted in the examination room." (Transcript Page 31). The candidates were also provided with a "Candidate Information Booklet" dated January 1990 (Exhibit R-1, Transcript Page 77). The booklet states on page 14, "No books with contents directed toward sample questions or solutions of engineering problems are permitted in the examination room." (Transcript Pages 77 and 96). Petitioner, who also took the October 1989 examination had received notice at that examination that the Board of Engineers intended to change the procedure allowing reference materials in the examination. (Transcript Page 89 and Respondent's Exhibit 2.) The Board of Professional Engineers advised the examination supervisor and proctors that no engineering "review" materials would be allowed in the examination although engineering "reference" materials could be brought into and used for the examination. However the books which were excluded included books without "review" in the title, books with "reference" in the title, and books which contained problems and solutions. Before the examination began Deena Clark, an examination supervisor, read over a loud speaker system names of books that would not be permitted (Transcript Page 81). Practice examination and solution manuals were not allowed for use by engineering candidates (Transcript Pages 93 and 94). Schram's outlines and other materials were also excluded (Transcript Page 91). Also excluded was Lindeburg's 6th edition, "Engineering In Training Review Manual." (Transcript Pages 16 and 79). This decision was verified by the Board before the examination began (Transcript Page 81). After the examination had begun, Ms. Clark announced that the candidates could put certain copyrighted materials in a three-ring binder and use them which had been excluded earlier (Transcript Page 85). This was in response to candidates who needed economics tables for the examination However, no time was provided the candidate to prepare these references and only one minute was added to the examination time. (Transcript Page 85). Petitioner did not bring any economic tables to the examination site except those contained in books which were not allowed in the examination. (Transcript Page 19). Petitioner did not remove the economic tables and permitted references from the Lindeburg's review manual until lunch and these tables were not available to him on the morning examination. (Transcript Pages 22 and 88). Of the six engineering economics questions on the morning portion for the examination, the candidate correctly answered four. No data was provided on the nature of these questions. The Candidate correctly answered 53 questions in the morning (weighted x 1) and 23 questions in the afternoon (weighted x 2) for a total of 99 weighted required points. He answered eight questions correctly in the "addition" portion of the examination. The table for eight additional questions correct in the "Scoring Information Booklet" used in determining the candidates final grade shows the adjusted equated score was 126 and his scaled score was 69. (Page 21 of booklet). The value of each economics question converted to final scoring scale was enough that passage of one economics question would have resulted in passage of the examination. The exclusion of certain materials from the examination was arbitrary and capricious and was done by a few individuals without any stated objective standard published by the board. Further, the board knew before the examination which books were to be excluded and could have notified examinees of the exact items to be excluded. The Board's generally poor handling of this matter is exemplified in announcing after the examination had begun that items previously excluded could be used if placed in a ring binder but not allowing any time to prepare such materials. (Tx. pgs., 74-80, 84-86, and 91-97) The Petitioner would have used several tables which were excluded if the announcement had been made before the morning examination began with time to put the items in acceptable form. After notifications in October 1989, December 1989, and January 1990, Petition admitted that he did not call the Board of Professional Engineers to ask for guidance on books that would not be allowed on the April 1990 examination (Transcript Page 29). However, a final decision on books to be excluded was not made until approximately two weeks before the examination. The Petitioner did not show that the two questions which he missed on the Engineering Economics portion of the morning examination were missed for lack of the tables. The examination is a national examination and there is no evidence that the requirements and limits established by the Board in Florida were applicable nationwide. To alter the national instructions locally potentially adversely affects Florida results.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Petitioner be permitted to take the examination without charge on one occasion. RECOMMENDED this 27th day of March, 1991, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1991. 1/ The general information provided to examinees by the State Board regarding the values of questions on the examination and scoring it misleading or inaccurate because neither the weighted required score nor the adjusted score was 48% of 80, 280, or any other number related to the scaled score of 70. The manner in which these values are associated with the scale score of 70 is contrary to the Board's explanation and is not self evident. This is a potential problem if the matter were formally challenged, and it appears the Board needs to reassess its procedures and instructions. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-5728 The Petitioner did not submit proposed findings. The Respondent submitted proposed findings which were read and considered. The following proposed findings were adopted or reject for the reasons stated: Adopted. Issue not fact. - 4. Rejected. Preliminary statement not fact. 5. -12. Adopted. Rejected. Preliminary statement not fact. Rejected as irrelevant. Rejected as preliminary statement. Adopted. Adopted. COPIES FURNISHED: Alan K. Garman Civil-Tech, Inc. 3573 Commercial Way Street B Spring Hill, FL 34606 William F. Whitson, Law Clerk Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Rex Smith Executive Director Board of Professional Engineers Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue Whether Petitioner is entitled to additional credit for his responses to Question No. 130 of the Principles and Practice of Engineering portion of the engineering licensure examination administered on April 23, 1999, by the National Council of Examiners for Engineers and Surveyors.
Findings Of Fact Petitioner, Dennis Vann (Petitioner), is an applicant for licensure as a professional engineer in the State of Florida. On April 23, 1999, Petitioner sat for the Principles and Practice Engineering Examination portion of the engineer licensure examinations. This is a national examination developed, controlled, and administered by the National Council of Examiners for Engineering and Surveying (NCEES). Petitioner received a raw score of 45 on this examination. For the electrical engineering discipline, a raw score of 45 results in a converted score of 67. A minimum converted score of 70 is required to pass this examination. A raw score of 48 results in a converted score of 70. Therefore, Petitioner needs an additional 3 raw score points to earn a passing score on the examination. Petitioner challenged the scoring of Question No. 130 on the examination and formally requested the NCEES to rescore his solutions to the question. The NCEES rescored Question No. 130 and determined that Petitioner was not entitled to any additional points for Question No. 130. For Question No. 130, the maximum score achievable was Petitioner received a score of 4 on that item. The NCEES developed and used an Item Specific Scoring Plan (ISSP) for each examination question. Question No. 130 was scored by the NCEES according to the ISSP for that question. Question No. 130 contains two subparts, which require the examinee to address four discrete requirements. Petitioner correctly calculated the bus current (requirement 3). However, Petitioner failed to properly calculate the busway loading and determination of adequacy (requirement 1), the bus impedance (requirement 2), and percent voltage drop (requirement 4). Petitioner's response to Question No. 130 was initially assigned a score of 4. However, if graded correctly, that response would have resulted in a score of 6. The credible testimony of Respondent's expert was that under the ISSP for Question No. 130, Petitioner is entitled to a score of 6 for his response. With a score of 6 for Question No. 130, Petitioner's raw score is increased to 47. A raw score of 47 results in a converted score of 69. Even with the 2 additional points awarded to Petitioner's response to Question No. 130, his score on the professional engineering licensure examination is still below 70 and is not a passing score. Question No. 130 provides all the necessary information for an examinee to solve the problem. Moreover, Question No. 130 is properly designed to test an examinee's competence in electrical engineering.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that a final order be entered concluding that Petitioner is entitled to a score of 6 points for his response to Question No. 130, and recalculating Petitioner's total score on the examination on the basis of that conclusion. DONE AND ENTERED this 21st day of April, 2000, 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 21st day of April, 2000. COPIES FURNISHED: Dennis Vann Post Office box 23054 Tampa, Florida 33623 William H. Hollimon, Esquire Ausley & McMullen 227 South Calhoun Street Post Office Box 391 Tallahassee, Florida 32301-1884 Dennis Barton, Executive Director Department of Business and Professional Regulation Board of Professional Engineers 1208 Hays Street Tallahassee, Florida 32301 Natalie A. Lowe, Esquire Florida Engineers Management Corporation 1208 Hays Street Tallahassee, Florida Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399
The Issue By this action, the Petitioner, Ambrose Garner, President of Hillsborough Community College, Tampa, Florida, is attempting to discipline David C. Dye, Respondent, employee of the Board of Trustees, Hillsborough Community College, Florida, in accordance with the provisions set forth in Rule 6A-14.411, Florida Administrative Code. Specifically, it is alleged that: David C. Dye did aid and assist another college instructor in wrongfully obtaining the procurement and contract for a course of instruction. David C. Dye did knowingly aid and assist another college instructor in wrongfully obtaining payment for a course of instruction. David C. Dye did pay or assist another in paying a portion of tuition for students improperly transferred to another class of instruction. David C. Dye did aid and assist another college instructor in the wrongful transfer of students to another course of instruction without the students' knowledge or authorization.
Findings Of Fact David C. Dye is currently an Associate Professor at the Hillsborough Community College in Tampa, Florida. In the Winter Term for that institution, beginning January 27, 1979, and concluding March 17, 1979, the Respondent Dye served as a part-time Community Service faculty member and taught a course referred to by number as Art 005-H27, Pottery. This was an elective Community Service course not for credit, with student attendance optional. For his work, the Respondent was paid $208.00 by the Hillsborough Community College. The Respondent's pottery class was formed and met during the aforementioned Winter Term. Among the students enrolled in that class were Beatrice K. Parson and Irene Powe. The pottery class taught by Dye in the Winter Term of 1979 was scheduled to meet on Saturday and did in fact meet at that time. Although the students, Powe and Parson, were scheduled to attend the Saturday class, for reasons of convenience they attended the Tuesday session of a Tuesday and Thursday academic art course that was being taught by the Respondent. This pattern of attendance took place for a period of two weeks in the Winter Term. In view of the different status between academic students and Community Service non-credit students and the perceived needs of a fellow instructor, one Carl H. Norton, the Respondent undertook to have the students, Powe and Parson, transferred to Carl H. Norton's class, Art 013-G25, Sculpture, a class in the Hillsborough Community College not for credit. Dye also had a concern for the student, Beatrice Parson, who was legally blind and who needed special instruction, which the Respondent felt he could not afford her in the context of his academic class on Tuesday and which he felt Norton could give her in his, Norton's Saturday class. Specifically, Dye's concern about having non-academic students attending the academic course on Tuesday pertained to his ability to devote sufficient attention to these non-academic students and still instruct the regular class. On the subject of Norton's problem, in a discussion with Norton he was led to believe that Norton's course would not be allowed to go forward due to an insufficient number of students enrolled. Norton explained to him in the beginning of the term that thirteen students were in attendance and it was the Respondent's and Norton's perception that fifteen students would be necessary to conduct that class. In reality, a minimum enrollment of ten students would have been sufficient and Norton had ten students even without Powe and Parson. (The minimum enrollment number of ten is borne out by a copy of the syllabus of the Norton sculpture class for the Winter Term approving the minimum enrollment by the Community College administration. A copy of this document may be found as Respondent's Exhibit No. 6 admitted into evidence.) Dye and Norton envisioned that Dye would speak with the students, Powe and Parson, about transferring to the Norton Saturday class and arrange for that transfer. Beyond the point of transfer, Dye hoped that Powe and Parson would attend the Norton class and also attend his Tuesday and Thursday sessions of the academic course as they desired. Dye received no remuneration from Norton in furtherance of this agreement to transfer the students, he did not discuss with Norton the method to be used in placing the transferred students on Norton's classroll, nor the method to be used in indicating their attendance at the classes. The Respondent took no action to see that Norton was paid for delivering the course of instruction in Art 013-G25, Sculpture. Dye was unaware that there was a differential between the salary that Norton was being paid and that of Dye, in that Norton was paid $288.00 for the course, Art 013-G25, which caused a difference in tuition for the students. Dye did not become aware of this disparity until after the instructional term in question. That differential for Powe and Parson once transferred to the Norton class was paid for by Carl Norton, without the knowledge of Dye. The transfer of the students was effectuated beginning in the third week of the academic course being taught by Dye on Tuesday and Thursday. (That course had an earlier starting time than the pottery course in which those students were enrolled, by one or two weeks.) The Respondent explained to Powe his perception that Norton needed extra students and also explained that Norton might be able to help Parson, keeping in mind her special circumstance related to blindness. Because Powe had accompanied Parson to the session, Dye expected Powe to be willing to make the transfer also, to assist in bringing Parson to the class. Powe acquiesced in the transfer arrangement by giving her permission to transfer her name from the Dye course to the Norton course. She did not take steps to further this arrangement and she did not attend Norton's classes, notwithstanding the fact that the Norton Saturday class met in relative proximity to Dye's Saturday class. After this conversation with Dye, she attended two more Saturday sessions with Dye and then dropped out. The following week beyond the conversation with Powe, Dye spoke with Beatrice Parson and although Parson seemed confused by the whole arrangement, she did in fact acquiesce in the transfer of her name from the Dye art class to that conducted by Norton. She took no further action to bring about the transfer nor did she attend any of the classes beyond the time of this conversation. David Dye spoke with Doris Zimmer, an Administrative Assistant in the Ybor Campus of the Community College, and she made the paper transfer of the students, Powe and Parson, from the Dye class, Art 005-H27, Pottery, to the Norton class, Art 013-G25, Sculpture. She did this by completing an adjustment and transfer form related to the students, Parson and Powe, copies of which may be found as the Petitioner's Composite Exhibit Nos. 3 and 4 admitted into evidence. Through this arrangement, Doris Zimmer signed the students' signatures for them. Parson and Powe were unaware of this adjustment to their enrollment. The arrangement for the transfer of Powe and Parson from the Dye class to the Norton class was by prior standing unwritten policy of the Community College, there being no written policy concerning the transfer of non-academic students from one course to another. In this regard, it was commonplace to allow the execution of the transfer forms without the signature of the student for the Community Service non-academic students upon relation that the transfer was approved by the student, as was the case herein. After the transfer had been mode, Norton carried the students, Powe and Parson, on his roll and marked them present, notwithstanding the fact that they did not attend his class and this may be seen through the Petitioner's Exhibit No. 1 admitted into evidence, which is a copy of his classroll. The students were dropped from David Dye's roll and he did not indicate any further attendance by those students in his Saturday pottery class as may be seen by a copy of his classroll, which is Petitioner's Exhibit No. 2 admitted into evidence.
Recommendation Based upon the above Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Administrative Charges placed against the Respondent, David C. Dye, be DISMISSED and that he be allowed to go forth without further answer. DONE AND ENTERED this 1st day of December, 1980, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 1st day of December, 1980. COPIES FURNISHED: David E. Bryant, Esquire, 401 East Kennedy Boulevard Tampa, Florida 33602 John J. Chamblee, Jr., Esquire Law Offices of Frank, Chamblee & Kelly, P.A. 341 Plant Avenue Tampa, Florida 33606
Findings Of Fact In April 1995, Abraham S. Inlong (Petitioner) took the Electrical Engineer part of the Professional Engineering Examination (Examination). A minimum grade of 70 is required to pass the Examination. The Department of Business and Professional Regulation, Board of Professional Engineers (Respondent) notified Petitioner that he had failed the Examination, having received a grade of 69.10. The Examination is a national examination and is graded by national examiners. Respondent issues licenses to practice professional engineering in the State of Florida and administers the Examination on behalf of the State. Petitioner challenges, the answer selected by the national examiners to Problem 433, Question 6 of the Examination, which is A. Respondent selected D as the answer, which states that A, B, and C are all correct. As part of the instructions for candidates taking the Examination, the candidates were to choose the best answer. The best answer is the correct answer. Respondent's response to Problem 433, Question 6 was regraded by the national examiners. They denied Respondent any additional credit. The best and correct answer to Problem 433, Question 6 is the answer identified by Respondent as the answer by the national examiners, i. e., A. The answer selected by Petitioner is not the best and correct answer. A diagram is part of the challenged problem and question. The diagram is clear and unambiguous. The scope of knowledge required for the challenged problem and question is not beyond the knowledge reasonably expected from a candidate for licensure. The challenged problem and question contain sufficient information for a candidate for licensure to select the best and correct answer. Additional information was unnecessary, including whether the system was balanced or unbalanced. The challenged problem and question are clear and unambiguous. The challenged problem and question are not devoid of logic and reason. The challenged problem and question are valid. Statistics indicate that 60 percent of the candidates for licensure (candidates), who took the Examination, answered Problem 433 correctly and that 48 percent of the candidates answered Problem 433, Question 6 correctly.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Board of Professional Engineers, enter a final order dismissing Abraham S. Inlong's examination challenge and denying him licensure. DONE AND ENTERED this 1st day of August, 1996, in Tallahassee, Leon County, Florida. ERROL H. POWELL, 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 1st day of August, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-0031 The following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact Partially accepted in findings of fact 1 and 2. Partially accepted in finding of fact 4. Partially accepted in findings of fact 4 and 8. Partially accepted in finding of fact 7. Rejected as being not supported by the greater weight of the evidence, not supported by the more credible evidence, argument, or a conclusion of law. Rejected as being not supported by the greater weight of the evidence, not supported by the more credible evidence, argument, or a conclusion of law. Rejected as being not supported by the greater weight of the evidence, not supported by the more credible evidence, argument, or a conclusion of law. Rejected as being not supported by the greater weight of the evidence, or not supported by the more credible evidence. Rejected as being not supported by the greater weight of the evidence, or not supported by the more credible evidence. Respondent's Proposed Findings of Fact 1. Partially accepted in finding of fact 1. 2. Partially accepted in finding of fact 2. 3. Partially accepted in finding of fact 2. 4. Partially accepted in finding of fact 2. 5. See Preliminary Statement. 6. See Preliminary Statement. 7. Partially accepted in finding of fact 4. 8. Partially accepted in finding of fact 4. 9. Partially accepted in finding of fact 7. 10. Partially accepted in finding of fact 11. 11. Partially accepted in finding of fact 10. 12. Partially accepted in finding of fact 9. 13. Partially accepted in finding of fact 10. 14. Partially accepted in finding of fact 10. Partially accepted in findings of fact 9 - 12. Partially accepted in finding of fact 12. Partially accepted in finding of fact 6. Rejected as being subordinate, argument, or a conclusion of law. Partially accepted in finding of fact 8. Partially accepted in finding of fact 14. Partially accepted in finding of fact 13. Rejected as being subordinate, or unnecessary. Rejected as being subordinate, or unnecessary. Rejected as being subordinate, or unnecessary. NOTE--Where a proposed finding has been partially accepted, the remainder has been rejected as being subordinate, irrelevant, unnecessary, not supported by the greater weight of the evidence, not supported by the more credible evidence, argument, or a conclusion of law. COPIES FURNISHED: Harold M. Braxton, Esquire One Datran Center, Suite 400 9100 South Dadeland Boulevard Miami, Florida 33156-7815 R. Beth Atchison Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Angel Gonzalez, Executive Director Department of Business and Professional Regulation Board of Professional Engineers 1940 North Monroe Street Tallahassee, Florida 32399-0755 Lynda Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Petitioner proved by clear and convincing evidence that Respondent left a kindergarten student, K.M., alone in her classroom on April 2, 2018, as alleged in Petitioner’s Administrative Complaint.
Findings Of Fact Based on the record and evidence presented at the hearing, the undersigned makes the following findings of relevant and material fact: Stipulated Facts Respondent holds Educator Certificate 1168653, covering the areas of Elementary Education, English for Speakers of Foreign Languages, and Exceptional Student Education (“ESE”), valid through June 30, 2021. At all relevant times, Respondent was employed as a kindergarten teacher at Sunland Park Academy, in the school district of Broward County, Florida. Evidence Presented at the Hearing Samiyeh Nasser During the 2017-2018 school year, Samiyeh Nasser (“Nasser”) was employed as a Teacher’s Assistant at Sunland Park Academy in the Broward County School district. She worked with the kindergarten classes. Nasser “pulled out” students, removing them from a teacher’s class and bringing them to her own room to provide extra help with reading, spelling, and word pronunciation. She regularly went to Leger’s classroom during first period each day, at approximately 9:00 a.m., and would take four or five students to her own classroom. She would then bring them back to their regular class to attend “specials,” which are elective classes. On April 2, 2018, when Nasser returned children to Leger’s classroom, at 10:05 a.m. that day, she noticed that the other students had already left the room, but that there was one student, K.M., there alone. When Nasser found her, K.M. was crying. When Nasser asked her why she was alone, K.M. said that her classmates had gone to physical education class (“P.E.”), and that she had been told by her teacher, Respondent, to stay in the classroom. Based on other credible evidence, K.M.’s comment to Nasser regarding having to “stay in the classroom” referred to a counseling conversation which Leger had with K.M. earlier in the morning, prior to the class leaving for P.E. She did not mention anything to Nasser about Steven Bynes (“Bynes”), a pool substitute who had assumed responsibility for the class in Respondent’s absence. Nasser opened the back door to the classroom, saw the other students at P.E., and instructed the small group of students she brought back to the classroom to join them outside. She did not see either Leger or Bynes with the students at P.E. when she found K.M. Nasser remained with K.M. briefly, hugged her to calm her down, and then left her in the room as she went on to assume her other duties. She was in Leger’s classroom a total of approximately five to seven minutes. Steven Bynes, Jr. Steven Bynes, Jr., was employed as a pool substitute at Sunland Park Academy during the 2017-2018 school year. He provided coverage when teachers were absent or out, and no outside substitute was hired for the day. On April 2, 2018, he was instructed to cover Leger’s class while Leger attended a meeting.1 Bynes was in Respondent’s classroom for approximately 20 minutes. Leger returned to the classroom while Bynes was still there and advised him that the class had “specials.” Bynes claimed that he advised Leger that it was two minutes before the class was to go to P.E., and advised her that she “still had time” to take them there. 1 This was a meeting between Leger, the guidance counselor, and a parent mentioned later in this Recommended Order, paragraph 60 infra. He claimed that Leger did not say anything to him, and he left the classroom to return to the front office. After the fact, Bynes was told that a student had been left in the classroom, but he denied knowledge of it and denied responsibility for leaving K.M. in the classroom. He claimed he left the class with Leger. He also denied having any conversation with K.M. in the classroom. Bynes denied taking the class to P.E. and stated that when he left the classroom, he left the students with Leger.2 Nikia Ragin Nikia Ragin (“Ragin”) was the Assistant Principal at Sunland Park Academy during the 2017-2018 school year. She was told by the Principal that Nasser had reported an incident concerning a student, K.M. After speaking to Nasser, she spoke to K.M. Ragin spoke to K.M. approximately two hours after the event took place, and then reported to the Principal. Ragin was also present when Leger explained to the Principal that Bynes, not she, had taken the students to P.E. Other than Leger’s statement, Ragin found no other evidence to conclude that Bynes had taken the students to P.E. Ragin’s conclusion regarding the evidence, at that point, was misguided and affected because the school surveillance cameras that would likely show who took the students to P.E. were not operating properly.3 Leger elaborated and explained to Ragin that she was in a meeting with the guidance counselor when the students went to specials. 2 Notably, Bynes said he didn’t really remember what Leger said or did after he advised her that she still had time to take the class to specials. Curiously, after he said this, he testified that he simply “walked out of the classroom.” This description by Bynes was significantly at odds with Leger’s testimony and recollection of the same discussion. Bynes seemed vague and uncertain at times regarding the incident. Leger’s description of her encounter and discussion with Bynes when she returned, is more persuasive and credible, and is adopted. 3 The camera tapes had been reviewed by Ragin because of Leger’s claim about not taking the students to P.E. Had the surveillance cameras been working, there would have been clear images of the kindergarten hallways and other relevant areas. There were also other inoperative cameras, that if working properly, would have shown relevant views of the hallway leading to and from the office of the guidance counselor. Sharonda Bailey Sunland Park Academy Principal, Sharonda Bailey (“Bailey”), received a report from Nasser about a student in Leger’s class. She referred the matter to Ragin, and saw her speaking with Nasser and also with K.M. Bailey recalled that Bynes had been in the classroom that day to cover the class. She asked him if anything had occurred when he was in the classroom. Bynes told Bailey that Leger had returned to the classroom and said something about the students being late for specials. Bynes recounted to Bailey that he explained to Leger that they weren’t that late, that she should take them herself, and that he then walked out the front door. When she spoke with Respondent, Leger stated to her that she did not leave a student in the classroom and that Bynes was the person who took the students to P.E. Bailey also attempted to verify who took the students to P.E. through the school’s security cameras. However, because the camera system was antiquated, it had not captured or recorded what she needed to see. The security cameras glitched and froze, and the time stamp was off. In short, the cameras were not capable of adequately displaying Respondent’s location or movement in the hallways because its quality was so poor.4 4 The security videos of the kindergarten hallway and the area outside the office of the guidance counselor were requested by Leger during discovery. However, they were not provided to her and were not used or shown at the final hearing. Bailey contacted K.M.’s mother and told her that her child was left alone in the classroom while the rest of the class was taken to specials. She explained that she would investigate the incident. Because Bailey was not able to find anyone during the investigation to validate Respondent’s position that she did not leave the student behind, she issued a written reprimand to Leger. Bailey did not speak at length with K.M. about the incident, but merely asked if she was okay. Private Investigator William Miller William Miller (“Miller”) was retained by Leger’s counsel to attempt to locate K.M. He ultimately located her in Gulfport, Mississippi. He telephoned K.M.’s mother, Shirelle M. He reached her in her car on her way to pick up K.M. from school. Later that day, Miller was also able to speak directly to K.M.5 Miller asked K.M. if she remembered the incident. K.M. explained that Respondent went to a meeting, and that the class had been turned over to a substitute teacher by the name of Mr. Bynes. She told him Bynes took the class to P.E. outside the classroom. K.M. related to Miller that she told Bynes she had been bad, and that Respondent had told her she could not go outside for P.E. K.M. stated that Bynes then told her to “wait in the classroom” and he took the rest of the class to P.E. Miller testified that neither he nor K.M.’s mother provided her with any background, mentioned Bynes, or in any way suggested what information they wanted from her. Miller had work experience interviewing juvenile witnesses and testified that he “assiduously avoided” leading K.M., because they are so prone to being improperly led when questioned. 5 Shirelle M. had called back about 30 minutes later and Miller spoke to K.M. on her mother’s speaker phone while they were in the car together. Miller recounted that K.M.’s mother expressed surprise that K.M. recalled the name of Bynes, and assured Miller that she had not coached K.M. in any way.6 Based on his interviews over the phone, affidavits were prepared for K.M. and her mother, which documented the verbal information they had provided to Miller. The affidavits were given to K.M.’s mother. Miller explained to her that the affidavits should be their testimony, and not the testimony of either Miller or the attorney in the case. He also explained that if there were any changes that needed to be made, she should make the changes, send the affidavit back to him, and that the affidavits could be redone, if necessary. Miller asked the mother to read and go over the affidavit that K.M. was being asked to sign. Miller arranged to have a notary go to their apartment in Mississippi to have the mother and the child execute the affidavits. Before this occurred, he was able to reach Shirelle M. by telephone. She apologized and told him that the delay in executing the affidavit stemmed from the fact that she had changed jobs, and that the Gulf Coast had experienced three separate hurricanes since he had last spoken to her. Miller explained to her that he did not want it to be inconvenient and that he would make the arrangements necessary to get a notary to her to be able to notarize the affidavits. The notary was given specific instructions to tell Shirelle M. and K.M. that they did not have to sign the affidavits, and could make any changes to them that they wanted. Despite the delay in securing her signature, Miller still felt that the mother did not have any hesitation signing her affidavit. 6 K.M.’s mother had been told of the incident, but had not been told about Bynes at the time of the incident. Ruth Galliard Leger Respondent was K.M.’s kindergarten teacher at Sunland Park Academy during the 2017-2018 school year. She recalled that K.M. was a good student and they got along well. Sometime during the morning of April 2, 2018, Respondent requested an emergency meeting with the school’s guidance counselor and the parent of a male student. The male student had come in late to class that day. He became disruptive, knocking teaching items, like posters and magnets, to the floor.7 The meeting was scheduled by the guidance counselor. Respondent left for the meeting when Bynes arrived at her classroom to provide coverage. Earlier that morning, K.M. had also been disruptive. Respondent counseled her and told her that if she did it again, Respondent would take some time from her P.E., consistent with the class rules, and that she would have to stay behind in the classroom with Respondent for a few minutes of her P.E. time.8 On the day of the incident, the class had P.E. scheduled at 10:10 a.m. When Respondent left for her meeting, the class had not yet gone to P.E. During the meeting with the guidance counselor, Respondent excused herself and returned briefly to her classroom to retrieve a form that needed to be signed by those in attendance at the conference. Resp. Ex. 1. When she entered the room to get the form, Bynes was there with her students. Respondent explained to Bynes that she forgot the form, and that her meeting with the counselor and parent was not over. Respondent asked Bynes what time it was and when he told her that it was approximately 10:15 a.m., she reminded him that the class had specials at 10:10 a.m. 7 This was out character for him, prompting Respondent to request the emergency meeting. 8 Four other students had also been counseled that morning about their conduct and the consequences before Respondent went to her meeting with the counselor. Bynes said that they had only missed five minutes, and the class could still go to P.E. Respondent retrieved the form she needed, went out the front door into the kindergarten hallway, and back to her meeting. The class was in the room with Bynes when Respondent departed to go back to the meeting. However, she did not see Bynes take the students to P.E. After the meeting with the counselor and the parent, Respondent left the counselor’s office. Respondent and the student’s parent stood in the first- grade hallway talking for several minutes.9 Respondent then walked the mother to the front door of the school, where there are more cameras, and parted company with her. Leger then proceeded down the hallway back to her classroom. When she got back, she was shocked to find K.M. standing in the room by herself. When she asked K.M. why she was in the room, K.M. explained that she had remembered that Leger previously told her that she owed time from P.E. for misbehaving. As a result, she decided to stay behind in the room when the others went to P.E. Respondent did not recall telling K.M. to “stay back” from P.E. Leger told K.M. that she did not have to remain behind, that she wasn’t upset with her, and that she should have gone to P.E. with the rest of the kids. Since there were five minutes left in the P.E. class, Respondent took K.M. out to P.E. When Respondent picked up her students from P.E. five minutes later, K.M. was fine and the class went to lunch. The next day, at the end of school, Principal Bailey handed Respondent a letter advising her that she was under investigation for leaving a child unattended. 9 This hallway was covered by the same faulty security cameras previously mentioned. At her disciplinary meeting, Respondent told Bailey that she did not leave K.M. in the classroom, and that she was at a meeting with the guidance counselor and a parent at the time. To support her defense, Respondent asked Bailey for the school videos which would show her in different hallways, entering the counselor’s office, and speaking with and walking the mother to the front door when her students went to P.E. Leger later asked her first lawyer on two separate occasions to obtain the relevant videos from the Broward County School District through a Freedom of Information Act request. Resp. Exs. 12a and 12b. She wanted the security videos to be subpoenaed for this case.10 K.M. remained in Respondent’s class for the balance of the year and Respondent had a good year with her. Leger never spoke to K.M. or her mother about the incident. Shirelle M. Shirelle M. is the mother of K.M. She recalled Miller calling and speaking to her and K.M. on the speaker phone. She heard K.M. tell Miller that it was Bynes that had left her in the classroom. She heard K.M.’s entire conversation with Miller. The affidavit that K.M. signed was an accurate recitation of the phone conversation she heard between Miller and her daughter in the car. She also signed her own affidavit that accurately set forth her conversation with Miller. Resp. Ex. 8. She knew that she could make any changes to her affidavit before signing it. 10 The undersigned took administrative notice of the DOAH file, which included Respondent’s subpoena to the Broward County School District seeking the videos, the District’s response, and Respondent’s Motion to Compel seeking access to the videos. Shirelle M. was there when K.M. signed her affidavit, and read it with her beforehand. She testified that no person forced her daughter to sign the affidavit. She explained the long period of time that elapsed between the time that she got the affidavit and the time that she signed. The delay was due to her work schedule, which involved four or five jobs, since the COVID-19 pandemic. She testified that she had no hesitation executing her affidavit, and did so freely and voluntarily, since it was accurate and correct. Concerning the day of the classroom incident, she saw her daughter before speaking with the Principal when she picked K.M. up from aftercare. She did not get much detail from the Principal, who said that the matter was still under investigation. The Principal never told her that it was Respondent who left K.M. in the room. She never overheard K.M. tell anyone that Respondent had left her in the classroom. K.M. Before beginning her testimony, eight-year-old K.M. was questioned by the undersigned. She was polite, alert, and calm. She understood the oath and the importance of telling the truth. She remembered when she lived in Florida. She also recalled Respondent as her kindergarten teacher and the incident of being left in the classroom. K.M. testified that it was Bynes who left her in the classroom when Respondent was at a meeting. 11 She recalled that when Bynes arrived at the classroom, Respondent then left for a meeting. 11 The Transcript mistakenly phonetically wrote Barnes. It should have been Bynes. K.M. stayed behind when the rest of the class went to P.E. She did so because Respondent had told her earlier that morning to stay behind because of minor discipline issues with her. More specifically, as the class left to go to P.E., K.M. told Bynes that she was supposed to remain in the classroom, and Bynes said “okay” and took the remainder of the class to P.E. K.M. remained in the classroom while the class was at P.E., until Respondent returned from her meeting. When asked by Leger why she was there alone, K.M. reminded Respondent that she had previously told her to stay in the class. K.M. executed an affidavit that she read and that her mother read to her. It accurately reflected what happened. Resp. Ex. 13b. K.M. recalled speaking to a man on the phone (Investigator Miller), and told him the same thing as what she testified to in court. K.M. unequivocally stated twice during the hearing that she never told anyone that Respondent, Leger, had left her in the classroom. Nobody told K.M. what to say in the hearing, and she remembered on her own that to which she testified. K.M. liked Respondent and stated that she was “a pretty good teacher.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order dismissing the Administrative Complaint and the charges contained therein. DONE AND ENTERED this 10th day of February, 2021, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 2021. COPIES FURNISHED: Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Mark S. Wilensky, Esquire Dubiner & Wilensky, LLC 1200 Corporate Center Way, Suite 200 Wellington, Florida 33414-8594 Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Charles T. Whitelock, Esquire Charles T. Whitelock, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316 Lisa M. Forbess Interim Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400
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 The issue for determination is whether Petitioner is eligible for licensure by the Board of Professional Engineers.
Findings Of Fact In October 1996, Henry A. Vidal (Petitioner) took the Principles and Practice part of the Electrical Engineer Examination (Examination). A minimum score of 70 is required to pass the Examination. The Department of Business and Professional Regulation, Board of Professional Engineers (Respondent) notified Petitioner that he had not successfully completed the Examination, having received a score of 67. The Examination is a national examination and is graded by national examiners. Petitioner challenges questions numbered 131 and 133 on the Examination. A scoring plan is used for grading each question. For question numbered 131, the highest score achievable is 10. According to the scoring plan, correctly solving any one part of the problem in the challenged question earns a score of 2; correctly solving any two parts, earns a score of 4; correctly solving any three parts, earns a score of 6; correctly solving any four parts, earns a score of 8; and correctly determining five specific items, even though the solution need not be perfect, earns a score of 10. Petitioner received a score of 4 on question numbered 131. Regarding question numbered 131, under the scoring plan, Petitioner is not entitled to any additional points. Even though Petitioner may have indicated his knowledge of the problem in the challenged question, he failed to solve the problem correctly, e.g., omitting a component and miscalculating. Petitioner solved two parts correctly, earning a score of 4. For question numbered 133, the highest score achievable is 10. According to the scoring plan, there are ten parts to the problem in the challenged question and correctly solving one or two parts, earns a score of 2; correctly solving three or four parts, earns a score of 4; correctly solving five or six parts, earns a score of 6; correctly solving seven or eight parts, earns a score of 8; and correctly solving nine or ten parts, earns a score of 10. Petitioner received a score of 8 on question numbered 133. Regarding question numbered 133, under the scoring plan, Petitioner is not entitled to any additional points. Even though Petitioner may have indicated his knowledge of the problem in the challenged question, he failed to solve the problem correctly, e.g., using the incorrect quantity. Petitioner solved eight parts correctly, earning a score of 8. The examiners for the Examination re-graded Petitioner's answers to questions numbered 131 and 133. Petitioner was denied additional credit for the challenged questions by the examiners. Petitioner's answers were not arbitrarily or capriciously graded. The grading process was not devoid of logic and reason. The scoring plan was properly used. Questions numbered 131 and 133 are not beyond the scope of knowledge that is required of a candidate for licensure as an electrical engineer and are capable of being answered by such a candidate for licensure. Considering the proof, the opinions of Respondent's expert were more persuasive. The evidence presented was insufficient to warrant additional credit to Petitioner on questions numbered 131 and 133.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Board of Professional Engineers enter a final order dismissing the examination challenge of Henry A. Vidal and denying him licensure. DONE AND ENTERED this 27th day of March, 1998, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1998. COPIES FURNISHED: Henry A. Vidal, pro se 5832 Alton Road Miami Beach, Florida 33140 R. Beth Atchison Assistant General Counsel 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 Department of Business and Professional Regulation Board of Professional Engineers 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this proceeding is whether Michael Reggia meets the Florida licensure requirements for a professional engineer in the field of manufacturing engineering. The issue is specifically whether the practice and principles portion of the licensing exam was valid. Procedural Matters At the final hearing, Petitioner, Michael Reggia testified in his own behalf and presented the testimony of manufacturing engineer, Howard Bender. Petitioner's exhibits #1 and #2, letters from Martin Marietta Aerospace and Harris Corporation, were rejected as hearsay. Exhibit #3, selected pages from Fundamentals of Engineering, published by the National Council of Engineering Examiners, was admitted without objection. Respondent presented two witnesses: Cass Hurc, P.E. (by deposition, by agreement of the parties) and Allen Rex Smith, Executive Director of the Board of Professional Engineers. Respondent initially submitted four exhibits: #1 and #4 were admitted without objection, #2(a) and #2(b), were admitted over Petitioner's objection, and #3 was withdrawn. The parties requested and were given 20 days to submit post-hearing briefs and proposed orders. On September 15, 1986, Petitioner filed his arguments and summary of she testimony and evidence. Nothing was filed by Respondent.
Findings Of Fact Michael Reggia resides in Titusville and works at the Kennedy Space Center. He is licensed in the state of California as a professional engineer and has practiced in the field of manufacturing engineering. California, like Florida, does not license an individual in a particular discipline of engineering but requires that an individual select an area in which he or she will be tested. Mr. Reggia took the professional engineering license exam in Florida in October 1985. For part two of the examination, Professional Practice and Principles, he chose to be tested in his field of manufacturing engineering. He achieved a score of 64.4; in order to pass, a score of 70 is required. The examination given in Florida is a national examination produced by the National Council of Engineering Examiners (NCEE) for certification or licensure throughout the United States. The October 1985 exam was developed based upon an extensive survey study initiated by NCEE in 1979. A report of that study was published in March 1981 as "A Task Analysis of Licensed Engineers". (Respondent's exhibit #4) The primary purpose of the study was to aid NCEE in developing"... fair, meaningful, uniform, and objective standards with which to measure minimum competency for professional licensure." (exhibit #4, page E1) In drafting an exam the NCEE relies on the societies representing various engineering disciplines to submit examination problems for consideration. The Society of Manufacturing Engineers, through its professional registration committee, provides that service on behalf of the manufacturing engineers. The October 1985 examination for manufacturing engineers did not include questions relating to electrical engineering, which is Mr. Reggia's sub- area of emphasis in the area of manufacturing engineering. Since manufacturing engineering includes overlap into the basic engineering disciplines, Mr. Reggia contends the exam was one-sided and invalid as he felt it concentrated on tool designing and mechanical engineering. Some industries, particularly the aerospace industries now include a substantial number of electrical engineers on their staff. Engineering is an evolving discipline and manufacturing engineering has undergone changes with new technologies in recent years. One way of addressing the diversity and changes in the field is to provide a two-book exam that would offer the applicant a wider variety of problems from which he or she could select. This has been recommended to the NCEE by the Society of Manufacturing Engineers. Another approach, and the one utilized by the NCEE, is to conduct periodic surveys to determine the tasks which engineers are actually performing and the level of judgement required to perform the tasks effectively. It would be impossible, and perhaps inappropriate to develop an exam that would test each individual only on his or her particular expertise. In the area of manufacturing engineering the exams developed by NCEE are passed by 65- 75 percent of the candidates, a rate which is comparable to that of the mechanical engineers for their exam. Seven out of ten applicants passed the same exam which Mr. Reggia took in October 1985.
Findings Of Fact Petitioner is licensed as a psychologist in Argentina, where she was educated. She attended the University of Buenos Aires completing a six-year program in four years. Petitioner received a degree in psychology from the University of Buenos Aires on December 23, 1977, but did not receive her diploma from that institution until June of 1979. She became licensed as a psychologist by the Ministry of Health in 1979. Upon her graduation from the University of Buenos Aires, Petitioner began to practice psychology in Argentina. She worked in a hospital from 1979 to 1983. Petitioner describes this period of work as her "internship." She also worked in a drug abuse program, which she also describes as an "internship." During these work experiences, Petitioner supervised other personnel. During the same period of time, specifically from 1980 to 1982, Petitioner also engaged in private practice. In 1981 Petitioner enrolled in the Argentina School of Psychotherapy for Graduates, where she took a number of courses and wrote a paper which she presented to the faculty there. The Argentina School of Psychotherapy for Graduates is not a degree-granting institution. Upon completion of the four year program, only a certificate is issued. Petitioner did not produce a transcript from the Argentina School of Psychotherapy for Graduates as part of her application for licensure in Florida. She submitted only a syllabus, i.e., a listing of the names of the courses she took at that institution. A syllabus, however, is not a transcript. Subsequently, Petitioner moved to the state of Michigan where she applied for licensure as a psychologist at the master's degree level. Based upon her education and training, she received a limited license to practice psychology in 1989. Michigan recognizes master's degree level psychologists. In Florida, however, master's degree level applicants are not eligible for licensure as psychologists. In 1991 Petitioner was interviewed by the licensure board in Michigan. Subsequent to that interview, Michigan granted her full licensure to practice as a psychologist in that state. In granting Petitioner full licensure, the Michigan licensing board deemed that her education and training were equivalent to education and training at the doctorate level even though between 1989 and 1991, Petitioner had not added to her education credentials. She had merely obtained additional supervised experience. At some point, Petitioner took and passed the Michigan examination for licensure. The Michigan examination is not the same as the examination for licensure developed by Professional Examination Services. Petitioner has never taken the national examination required for licensure in Florida. In 1993, Petitioner applied for licensure as a psychologist in Florida. She maintains that Michigan's determination that her education and training are equivalent to a doctorate level education should be sufficient to qualify her for Florida licensure as well. She admits, however, that she does not have a Ph.D. She also admits that there is "a huge difference" between the training in Argentina and the training in the United States. As part of her application process and in order to demonstrate to Respondent her qualifications for licensure in Florida, Petitioner submitted her education and training credentials to two foreign education credentialing services. One of those services determined that Petitioner has the equivalent of a Bachelor of Science degree in psychology from an institution in the United States that has regional academic accreditation, plus completion of four years of advanced theoretical and clinical training. The other service found that Petitioner has the equivalent of a bachelor's degree in psychology. The second credentialing service was unable to evaluate Petitioner's studies at the Argentina School of Psychotherapy for Graduates because that institution is not recognized as a degree-granting institution of higher education. Neither of those evaluations could verify that Petitioner possesses the equivalent of a doctorate degree as a result of her training and education in Argentina. In 1992, the University of Buenos Aires created a Ph.D. program in psychology; however, that program did not exist at the time that Petitioner attended that institution. The Argentina School of Psychotherapy for Graduates is not a degree granting institution and does not offer a doctorate program in psychology. At the time that Petitioner chose to attend the University of Buenos Aires and the Argentina School of Psychotherapy for Graduates, it was possible to obtain a Ph.D. in psychology in Argentina, but Petitioner chose not to pursue that course of study. Based upon Petitioner's advanced education beyond her bachelor's degree, she has the educational equivalent of a master's level degree without the thesis generally required to obtain such a degree.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application for licensure as a psychologist either by endorsement or by examination. DONE and ENTERED this 7th day of June, 1996, at Tallahassee, Leon County, 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 7th day of June, 1996. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 94-4675 Petitioner's proposed findings of fact numbered 1-3, 5, 7, 9, 11, 20- 22, 24, 28 and 46 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 4 and 10 have been rejected as being irrelevant to the issues under consideration in this cause. Petitioner's proposed findings of fact numbered 6, 13-17, 19, 39, 41- 43, 47, and 50-54 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Petitioner's proposed findings of fact numbered 8, 12, 18, 25-27, 34- 38, 40 and 49 have been rejected as not being supported by the weight of the competent evidence in this cause. Petitioner's proposed findings of fact numbered 23, 29-33, 44, 45, and 48 have been rejected as being subordinate to the issues herein. Respondent's proposed findings of fact numbered 1-10, 12 and 15 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 11, 13 and 14 have been rejected as not constituting findings of fact but rather as constituting argument of counsel. COPIES FURNISHED: Frank P. Rainer, Esquire 215 South Monroe Street, Suite 815 Tallahassee, Florida 32301 Virginia Daire, Esquire Department of Legal Affairs The Capitol PL-01 Tallahassee, Florida 32399-1050 Dr. Kay Howerton, Executive Director Agency for Health Care Administration Board of Psychology 1940 North Monroe Street Tallahassee, Florida 32399-0792
