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SUSAN E. WILSON vs BOARD OF PROFESSIONAL ENGINEERS, 97-003468 (1997)
Division of Administrative Hearings, Florida Filed:Jacksonville, Florida Jul. 28, 1997 Number: 97-003468 Latest Update: Jan. 27, 1999

The Issue Is Petitioner entitled to one additional point on the October 1996 Professional Civil Engineer Examination so as to achieve a passing score for licensure in Florida?

Findings Of Fact Petitioner took the Civil Engineer Examination given in October 1996. The Department of Business and Professional Regulation's Bureau of Testing notified Petitioner by Examination Grade Report dated February 17, 1997, that she had earned a score of 69.00 on the Civil Engineer Examination. The minimum passing score for the Civil Engineer Examination is 70.00. Petitioner timely requested formal hearing and challenged only Question 120, for which she received no points. Petitioner is trained as a materials engineer. Question 120 is a soils and foundation problem outside her concentrated area of study. It is an open book examination question. Petitioner selected the correct equation from the applicable manual, but acknowledged that she solved the variables of that equation incorrectly. The National Council of Examiners for Engineering and Surveying (NCEES) produced, distributed, and was responsible for grading the examinations. Petitioner contended that the examiner who graded her answer sheet applied different criteria than the examination criteria published by the NCEES. Petitioner further contended that since one criterion her grader actually used was merely to "write the correct equation," she should be awarded at least one point on that basis. However, a comparison of the actual grader's handwritten "summary" on Petitioner's Solution Pamphlet (Respondent's Exhibit 3) and the NCEES's Solutions and Scoring Plan (Respondent's Exhibit 2) does not bear out Petitioner's theory. It is clear that out of five possible parts of the question, which five parts total two points' credit each, merely selecting the correct equation from an open text would not amount to two points, or even one point, credit. I accept as more competent, credible and persuasive the testimony of Eugene N. Beauchamps, the current Chairman of the NCEES Examination Policy Committee and a Florida licensed Professional Engineer, that the grader's "summary" describes what he actually reviewed in Petitioner's written solution to Question 120 rather than establishing one or more different grading criteria. In order to receive a score of two on Question 120, the candidate was required to demonstrate any one of five requirements listed in the NCEES Solution and Scoring Plan for "2-Rudimentary Knowledge." The first requirement in the NCEES Solution and Scoring Plan (Respondent's Exhibit 2) for receiving a score of two points is, "Determines effective overburden stress at mid- depth of clay layer." The remaining four NCEES scoring criteria required that the examinee: Computes the change in effective stress at mid- depth of the clay layer due to placement of the fill. Computes the primary consolidation settlement, based on a change in effective stress, due to the fill surcharge. Evaluates the Average Degree of Consolidation and the Time Factor. Determines the waiting period after fill placement recognizing the existence of double-drained conditions. In order to gain two more points (total 4 points) so as to demonstrate "More Than Rudimentary Knowledge But Insufficient to Demonstrate Minimum Competence," Petitioner would have to have met two of the five bulleted criteria. For two more points (total 6 points) for "Minimum Competence," Petitioner would have had to score three bullets. For two more points (total 8 points) for "More than Minimum But Less Than Exceptional Competence," Petitioner would have had to score four bullets. Finally, to attain "Exceptional Competence" for 10 total points, Petitioner would have had to score all five bullets. In the first correct equation for answering Question 120, "p sub zero" (p naught) equals the present effective overburden pressure, which represents what clay was present before anything was put on top of the clay layer. "P" equals the total pressure acting at mid-height of the consolidating clay layer or the pressure of the dirt and the water in the dirt. "H" equals the thickness of the consolidating clay layer. Petitioner's solution for the first bullet, "determining the effective overburden stress at mid-depth of clay layer," indicated p sub zero (p naught) as the "present effective overburden pressure," but it incorrectly calculated p sub zero equaling 125 pounds multiplied by 13 feet. This is incorrect because the effective overburden pressure would not include 13 feet of fill. The 13 feet of fill is not part of p sub zero, the present effective overburden pressure. Petitioner's solution for the first bullet, also multiplied water, represented by 62.4, by 12, which is incorrect. She should have used a multiplier of 10 to receive credit for this problem. The grader indicated the correct equation was used incorrectly by Petitioner because of the two foregoing incorrect calculations. The equation, as Petitioner stated it, was correct and her multiplication was correct. Her solution identified P sub zero as present effective overburden pressure but present effective overburden pressure would not include the fill. Petitioner had the correct equation for the present effective overburden pressure and her mathematics were correct. However, she did not use the consolidation equation correctly, not obtaining the correct percentage of primary consolidation. As stated, the problem did not consider the fill as part of the present effective overburden pressure. Her solution also contained the correctly written time rate of settlement equation but failed to use it, and no waiting period was determined. The practical result of Petitioner's error could range from a cracked building to a collapsed building, depending upon the degree of error to site and materials.

Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a Final Order denying Petitioner's challenge and affirming her score as one point below passing. RECOMMENDED this 3rd day of March, 1998, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1998. COPIES FURNISHED: Susan E. Wilson 3581 Jose Terrace Jacksonville, Florida 32217 R. Beth Atchison Assistant General Counsel Department of Business and Profession Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Angel Gonzalez, Executive Director Department of Business and Profession Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Lynda L. Goodgame General Counsel Department of Business and Profession Regulation 1940 North Monroe Street Tallahassee, Florida 32399

Florida Laws (1) 120.57
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DAVID RIGGINS vs HILLSBOROUGH COUNTY, 17-003106 (2017)
Division of Administrative Hearings, Florida Filed:Tampa, Florida May 25, 2017 Number: 17-003106 Latest Update: Feb. 08, 2018

The Issue Whether Petitioner, David Riggins, was subject to an unlawful employment practice by Respondent, Hillsborough County, based on his disability (handicap) in violation of the Florida Civil Rights Act.

Findings Of Fact Petitioner brings this action alleging that his current employer, the County’s Public Utilities Department, discriminated against him based on his disability and in retaliation for his challenge to his job reassignment. Petitioner started working for the County in January 2008. Petitioner was hired as an Electrician 3 in the Public Utilities Department. On January 18, 2011, Petitioner was promoted to Electronic Technician III. Generally, Petitioner’s job was to inspect, maintain, and repair field instrumentation related to the County’s water treatment and wastewater facilities. By all accounts, he was a competent, knowledgeable, and reliable employee without any issues in his performance. In January 2014, Petitioner’s position was reclassified from Electronic Technician III to Industrial Instrumentation and Controls Technician (“IIC Technician”). The job duties for Electronic Technician III and IIC Technician were substantially similar. With the reclassification, Petitioner’s pay was increased to $28.48 per hour (effective October 1, 2013). On October 1, 2014, Petitioner received a market equity pay increase to $29.33 per hour. On March 2, 2011, Petitioner suffered a serious work- related accident. Petitioner was electrocuted while he was servicing modules at a water treatment plant. The electric shock left Petitioner with two medical conditions identified as Syncope and Collapse. Syncope causes a loss of consciousness resulting from insufficient blood flow to the brain. Collapse causes an individual to fall down or become unconscious due to sickness or exhaustion. At the final hearing, Petitioner explained that the shock he received caused the electrical impulses in his heart to stop functioning efficiently. Petitioner relayed that his medical condition causes him to experience episodes of dizziness and light-headedness. He also periodically suffers from blurred vision, tunnel vision, and on several occasions, loss of consciousness. Petitioner cannot predict when he will experience the symptoms of Syncope or Collapse. An episode could happen at any time. In a medical evaluation in July 2012 with his treating cardiologist, Dr. J. Thompson Sullebarger, Petitioner recounted that since his electric shock, he “had several spontaneous episoded [sic] of syncope with similar symptoms and still has dizziness sometimes when he gets up in the morning.” Petitioner also complained of dizziness, paresthesia (a tingling or numbness on the skin), and vertigo. Dr. Sullebarger opined that Petitioner “is unsafe to work on ladders or in buckets or high places.” Dr. Sullebarger further instructed Petitioner to “[a]void ladders and working in high places.” On September 25, 2012, Petitioner returned to Dr. Sullebarger. Petitioner “continued to complain of dizziness and episodes of near syncope.” Petitioner relayed that he “is dizzy almost every day.” On August 14, 2013, Petitioner submitted a “Request for Reasonable Accommodation” to the County based on his medical conditions. Petitioner relayed that he should avoid working from heights, elevated platforms, or catwalks, as well as working around open wet wells. In a follow-up letter to the County clarifying his request, Petitioner represented that he could perform his IIC Technician duties if he was allowed to wear a safety harness and lanyard when working at heights and elevated platforms. In January 2014, at the County’s request, Petitioner’s job of Electronic Technician III was analyzed to determine the essential physical requirements of his job. The study found that “climbing in [the Electronic Technician III] position is required.” However, “the frequency of climbing ladders was determined to be approximately 10%.” On June 20, 2014, the County notified Petitioner that, in light of his medical limitations, it would no longer allow him to work as an Electronic Technician III/IIC Technician. The County determined that climbing ladders of various heights was an essential function of Petitioner’s duties. Therefore, because Petitioner’s medical provider had instructed him to “avoid climbing on ladders,” the County determined that Petitioner could no longer perform the duties of an IIC Technician. The County offered Petitioner three months to search for another job with the County. The County informed Petitioner that if he did not find another job within the allotted time, the County would proceed with a Due Process Hearing to terminate his employment. Petitioner valued his IIC Technician job very much and did not want to lose it. Consequently, over the ensuing three months, Petitioner neither applied for nor requested another job with the County. Instead, Petitioner elected to challenge the County’s employment decision at a Due Process Hearing. The Due Process Hearing was held on February 9, 2015. Petitioner did not prevail. Thereafter, on March 20, 2015, George Cassady, the Director of the County’s Public Utilities Department, formally removed Petitioner from his IIC Technician job. However, rather than terminate Petitioner, Mr. Cassady offered to place him in the position of Business Analyst II. Mr. Cassady wrote in a letter to Petitioner, “I have decided to accommodate your restriction(s) by transferring you to the job of Business Analyst II in the Maintenance Planning Support Team. Your salary will be $26.00 per hour. Your transfer is effective Monday, March 23, 2015.” Petitioner was very disappointed to lose his IIC Technician job. He was also distressed that his salary was to be reduced from $29.33 to $26.00 per hour. Therefore, before he accepted the transfer, in June 2015, Petitioner appealed the Due Process Hearing determination to the Hillsborough County Civil Service Board. Petitioner argued that his reassignment to Business Analyst II was a “demotion.” The Civil Service Board held an evidentiary hearing on March 16, 2016. The Civil Service Board agreed with Petitioner that, because his salary was reduced, his placement in the Business Analyst II position should be considered a demotion. However, the Civil Service Board concluded that Petitioner failed to prove that the County “acted without just cause” to demote him to Business Analyst II. Subsequent to the Civil Service Board decision, on May 4, 2016, Petitioner and the County entered into a settlement agreement to amicably resolve the issue of his reassignment. Through the settlement agreement, the County agreed to increase Petitioner’s base hourly rate of pay to $28.00 per hour (up from $26.75). The County also agreed to pay Petitioner a lump sum of $5,000. For his part, Petitioner agreed to “release and/or withdraw . . . [a]ny and all claims, grievances, appeals in any forum associated with the placement of [Petitioner] in the Business Analyst II position as of March 23, 2015.” Petitioner also assented that his placement as a Business Analyst II was a “transfer of his employment and not a demotion.” Petitioner’s current action focuses, not on his placement in the Business Analyst II position, but on the County’s subsequent refusal to hire him back in his previous job as an IIC Technician. On two separate occasions, Petitioner applied with the County for an IIC Technician position. In February 2015, the County advertised an IIC Technician opening. The advertisement did not list any physical requirements for the position. The County did not interview Petitioner for the job. In July 2016, the County advertised to fill another IIC Technician position. In this advertisement, the County expressly listed that the job specific competencies included, “[a]bility to climb ladders.” Petitioner applied again. In September 2016, the County notified Petitioner that he would not be considered for the IIC Technician position. Petitioner received an e-mail from the County Human Resources office stating, “[w]e were very impressed with your qualities as an applicant and even though other candidates overall Qualifications were deemed most compatible with the duties and responsibilities of this position, we hope your interest in career opportunities with Hillsborough County will continue.” Petitioner asserts that, based on the County’s hiring matrix, he was the most qualified candidate given his years of experience and his possession of the required certified central system technician license, which no other candidate possessed. Nevertheless, he was excluded from consideration for the position. Petitioner asserts that no legitimate reason existed for the County to reject his application to fill the IIC Technician position. Petitioner disputes that his current medical restrictions prevent him from performing the essential functions of an IIC Technician. At the final hearing, Petitioner expressed that he is no longer medically prohibited from climbing ladders. On September 21, 2015, following another medical examination, Dr. Sullebarger stated that Petitioner’s only restriction was “Harness at Heights (otherwise no restrictions).” Petitioner’s understanding is that Dr. Sullebarger will allow him to climb ladders if he wears a safety harness. On March 3, 2016, Dr. Sullebarger completed a Medical Certification Form for the Commission. On this form, Dr. Sullebarger wrote that Petitioner is “at risk for dizziness or fainting.” Dr. Sullebarger opined that Petitioner’s use of a safety harness was reasonably necessary in order for him to perform the required functions of an IIC Technician. Dr. Sullebarger specified that “working with a harness at heights will reduce [Petitioner’s] risk of injury due to falls.” Despite the apparent improvement of his condition, at the final hearing, Petitioner affirmed that he still suffers from Syncope and Collapse. Petitioner further acknowledged that his medical condition could make performing the IIC Technician duties more risky. For instance, if an IIC Technician needed to climb a ladder to access a device, and the location did not support the use of a safety harness, then Petitioner would have to work at heights without the medically required safety equipment. However, despite his unpredictable episodes of dizziness and his need to use a safety harness, Petitioner argued that he can competently perform the IIC Technician job. Initially, Petitioner disputed that climbing ladders is an essential function of an IIC Technician. Petitioner expressed that an IIC Technician typically programs and calibrates electronic equipment on level ground. Petitioner relayed that for the months prior to losing his IIC Technician position, he satisfactorily performed his responsibilities without climbing ladders. At the final hearing, Petitioner insisted that, at most, ten percent of the IIC Technician job involves climbing ladders. Furthermore, to the extent that climbing ladders is required, reasonable accommodations exist to allow him to perform the essential functions of the job. These accommodations include hydraulic lifts, as well as the use of a safety harness at heights. Petitioner asserted that neither preventive measure would change the scope of the IIC Technician responsibilities. Consequently, his medical condition poses no safety threat. Petitioner further argued that his medical restriction should not preclude him from the IIC Technician job because every IIC Technician is required to use a safety harness.3/ Therefore, because Petitioner’s need to use a “safety harness at heights” is a precaution that every IIC Technician must exercise, his medical condition should not prevent the County from hiring him as an IIC Technician. Finally, Petitioner disputed the County’s position that situations exist in which IIC Technicians are not able to use a safety harness to perform their duties. In particular, Petitioner argued that it is standard industry practice for technicians to wear a harness with two lanyards when transitioning at heights, such as from a ladder to a platform. Further, no County employee can perform inspections or repair work six feet or more above any work surface without a safety harness or some other approved means of fall protection, such as guardrails. Therefore, Petitioner’s medical restriction would not affect his job performance in any way. Petitioner pursues four results with his action. First, Petitioner seeks an immediate return to his IIC Technician position. Next, Petitioner wants his salary restored to its previous rate ($29.33 per hour) along with any lost merit increases. Third, Petitioner desires to have his seniority status restored. Prior to his demotion, he was the most senior member of his team. He has no seniority as a Business Analyst II. Finally, Petitioner seeks the ability to renew his professional certifications. He alleged that the Business Analyst II job severely hinders his professional prospects by making it more difficult for him to renew and maintain his professional certifications. Mr. Cassady testified at the final hearing regarding the County’s refusal to rehire Petitioner as an IIC Technician. Mr. Cassady, as the Director of the Public Utilities Department, oversees the division in which Petitioner works. Mr. Cassady made the ultimate decision regarding Petitioner’s current employment status. Mr. Cassady described the County’s public works facilities as an “industrial work environment.” The County oversees and monitors 17 separate water treatment and water reclamation plants. Mr. Cassady commented that some chemical storage tanks “exceed 40 feet in height and have limited guardrails around them.” Mr. Cassady recounted that he reviewed Petitioner’s situation at great length. Mr. Cassady imparted that he is constantly aware of, and watching out for, the safety of his employees. Mr. Cassady relayed that an IIC Technician is responsible for working around high voltages and in close proximity to large machinery that includes rotating pieces of equipment motors and pumps. In considering Petitioner’s medical restrictions, Mr. Cassady determined that climbing ladders and working at heights to access or inspect electronic controls and components is an essential function of the IIC Technician job. Mr. Cassady explained that, although the frequency of the use of ladders might vary amongst assignments, all IIC Technicians must be able to climb and use ladders. Mr. Cassady described several routine tasks in which an IIC Technician operates in or on elevated equipment that do not support the use of a safety harness. These situations include climbing ladders to service electronic instruments located on top of raised pipes. In addition, IIC Technicians regularly ascend ladders to small platforms located on top of the 40-foot-tall treatment tanks to calibrate level control devices within the tank. Consequently, Mr. Cassady concluded that the responsibilities of the IIC Technician position would directly expose Petitioner to the inherent dangers associated with working at heights. Mr. Cassady did not dispute that Petitioner possesses the skills and qualifications to perform the job of ICC Technician (not considering his disability). However, he was (and is) very concerned about the possibility that Petitioner could be injured if he were to experience a sudden or unexpected dizzy or fainting spell while climbing a ladder or accessing a high platform. Mr. Cassady adamantly believes that Petitioner’s unfortunate medical condition creates unacceptable safety hazard for both Petitioner and the County should he return to the IIC Technician position. Mr. Cassady admitted that the County purposely did not interview Petitioner for the IIC Technician job openings. However, he denied that the County refused to consider Petitioner just because he has a disability. Instead, the County’s overriding concern was that Petitioner could not work safely at heights due to his medical condition, which causes him to experience unpredictable dizziness or loss of consciousness. On the other hand, while Petitioner was unable to perform the job of IIC Technician, Mr. Cassady believed that Petitioner’s analytical and practical skills remain an asset to the County. Therefore, Mr. Cassady offered Petitioner the Business Analyst II position. A Business Analyst focuses on data collecting and analyzing as opposed to operations. Not only does the Business Analyst II position provide Petitioner the opportunity to use his knowledge and training in the same field as an IIC Technician, but Petitioner can perform the job on the ground and is not required to climb ladders or work at heights. The Business Analyst II position includes a higher pay scale than the IIC Technician. However, Mr. Cassady set Petitioner’s initial salary at a lower rate ($26 per hour) to maintain equity with the four other County employees who had been assigned to the same position for a longer period of time. Mr. Cassady denied that the County refused to hire Petitioner as an IIC Technician job in retaliation for his request for a Civil Service Board review of his placement in a Business Analyst II position. On the contrary, Mr. Cassady believed that Petitioner was a valuable employee with the Public Utilities Department. Mr. Cassady offered Petitioner the Business Analyst II job specifically as a way for the County to retain his services. Mr. Cassady explained that he has always been supportive of Petitioner’s career development with the Public Utilities Department. In fact, he rejected Human Resources’ initial recommendation to terminate Petitioner’s employment when the County determined that Petitioner was unable to perform the essential functions of his IIC Technician job. Mr. Cassady has also encouraged Petitioner to improve his marketable skills by furthering his education, courtesy of a County scholarship program. Finally, Mr. Cassady testified that implementing the accommodations that Petitioner suggests is unworkable. Mr. Cassady contended that a number of the locations in which an IIC Technician must work do not support the use of a safety harness and lanyard. For example, the treatment tanks are not equipped to enable the use of a safety harness while climbing up the 40-foot-tall ladder or when transitioning from the ladder to the platform. Mr. Cassady asserted that any such modifications would be prohibitively expensive or impractical to install. Several County employees who are currently employed as IIC Technicians testified at the final hearing regarding their job requirements. These witnesses discussed the role of climbing ladders and working in high places in performing their duties. Mark Maples, an IIC Technician with the County, testified that he regularly climbs ladders while performing his job. Mr. Maples stated that he must use a ladder during several of his routine work responsibilities, such as checking a flow meter device at a water treatment plant. Mr. Maples estimated that he uses a ladder approximately 40 percent of the time he works. Mr. Maples also remarked that he routinely climbs ladders in work settings that do not offer a mechanism to tie off a safety harness. Consequently, a safety harness would not provide an IIC Technician complete protection while working at heights. Mr. Maples also expressed his discomfort with the idea of working with an IIC Technician who was not medically cleared to work on elevated equipment. As an example, Mr. Maples described how IIC Technicians are responsible for inspecting and calibrating the level control devices situated on top of each large treatment tank. Each tank is 40 feet high. To accomplish such an inspection, the IIC Technician must scale a ladder attached to the side of the tank. The tank provides no apparatus to which a safety harness may be fastened. Based on Petitioner’s medical condition, which could cause sudden and unanticipated dizziness, Mr. Maples was concerned whether Petitioner could safely accomplish the required inspection. Mr. Maples would be worried that Petitioner might faint and fall down the ladder or tumble off the top of the tank. Mr. Maples declared that a “one- time fall is one time too many.” Michael Newsome, another IIC Technician, testified that he regularly uses a ladder to perform his job. Mr. Newsome explained that his job requires him to work in elevated places, and he has to climb a ladder to get there. Mr. Newsome estimated that he needs a ladder less than five percent of the time. Louis Ocampo has worked as an IIC Technician for the County for approximately two years. Mr. Ocampo testified that he regularly uses a ladder in his job. He works at heights and elevated areas, such as treatment tanks and on video cameras. Mr. Ocampo estimated that he needs a ladder approximately ten percent of the time. Based on the competent substantial evidence in the record, the preponderance of the evidence does not establish that the County discriminated against Petitioner based on his disability (handicap). Accordingly, Petitioner failed to meet his burden of proving that the County discriminated against him in violation of the FCRA.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order: finding that Petitioner, David Riggins, did not prove that Respondent, Hillsborough County, committed an unlawful employment practice against him; and dismissing his Petition for Relief from an unlawful employment practice. DONE AND ENTERED this 29th day of November, 2017, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of November, 2017.

USC (2) 42 U.S.C 1211242 U.S.C 12203 Florida Laws (5) 120.569120.57120.68760.10760.11
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KUTINA MCLEOD vs DEPARTMENT OF LAW ENFORCEMENT, 02-002726 (2002)
Division of Administrative Hearings, Florida Filed:Key West, Florida Jul. 09, 2002 Number: 02-002726 Latest Update: Oct. 30, 2002

The Issue Whether the Petitioner, Kutina McLeod, should have received credit for answers provided on the examination for the State Officers Certification Examination for Correctional Officers (the exam).

Findings Of Fact The Petitioner is an applicant for certification as a correctional officer. The Respondent is the state agency charged with the responsibility of certifying correctional officers. As such, it must administer the examinations used to assure competency for certification. The examination at issue in this proceeding is known as the State Officers Certification Examination for Correctional Officers. It is a multiple-choice test that is scored by marking the best of the proposed answers. Only one of the proposed answers is deemed correct. As to this Petitioner, four questions were challenged that the Petitioner did not receive credit for on the exam. As to each challenged question, the Petitioner felt her answer should have received credit. All of the questions challenged by the Petitioner were taken almost verbatim from the exam's course materials. The Petitioner attended the course and was instructed as to each of the challenged matters. The instruction did not deviate from the language that later appeared on the exam. None of the challenged questions proved to be statistically invalid by virtue of the number of wrong answers provided to the question. In fact, as to one of the Petitioner's challenged questions, 88 percent of the persons tested responded accurately. Only 5 percent of the persons tested gave the answer that the Petitioner provided. The Petitioner's confusion as to the answers she provided was probably influenced by her experiences as an officer within a jail setting. The Petitioner provided answers based on the totality of her experience and not just the material covered in the instructional course. None of the Petitioner's answers, however, were more correct than those set forth by the Respondent.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Law Enforcement, Criminal Justice Standards and Training Commission, enter a Final Order dismissing the Petitioner's challenge to the exam. DONE AND ENTERED this 30th day of October, 2002, in Tallahassee, Leon County, Florida. ___________________________________ J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 2002. COPIES FURNISHED: Grace A. Jaye, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Kutina McLeod 309 Julia Street Key West, Florida 33040 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Florida Laws (2) 120.57943.1397
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CURTIS LORD vs BOARD OF PROFESSIONAL ENGINEERS, 90-007502 (1990)
Division of Administrative Hearings, Florida Filed:Fort Lauderdale, Florida Nov. 28, 1990 Number: 90-007502 Latest Update: Mar. 14, 1991

The Issue The issue presented is whether Mr. Lord should be granted additional credit for his answer to question number 144 on the April 1990 Professional Engineer licensure examination.

Findings Of Fact Mr. Lord (Candidate #301402) received a score of 66.3 percent on the April 20, 1991, Principals and Practice portion of the Professional Engineer examination. A minimum passing score was 70.0 percent. Mr. Lord challenged the scoring of his response to question number 144. Question number 144 is an essay question involving an assembly line problem where four separate stations are used to assemble a product in sequence. A fifth station can assist in maximizing the number of finished products produced per hour, and is capable of performing all operations. The correct answer to question number 144 was 100 products per hour, while Mr. Lord's answer was 25 pieces per hour. Petitioner received a score of 2 (out of a possible 10) points on question number 144. This was based on the scoring plan developed for the exam by the National Council of Examiners for Engineering and Surveying. Mr. Lord used a method of averaging station assembly times to determine the maximum average number of products each station could produce. The averaging method gave a solution which did not identify the central issue presented by the essay question: identifying and eliminating the bottlenecks in production. Mr. Lord also made an assumption that the initial four stations could do all operations, thus defining the model inaccurately. This misreading allowed Mr. Lord to use an averaging methodology. Mr. Granata, the Department's expert, testified that it is a coincidence of the numbers that if you multiply Respondent's answer (25) by four (the initial number of machines) you get the Board's answer (100). Mr. Greenbaum, Petitioner's expert witness, testified that Petitioner's answer is "unique" and that he, as an expert, would have answered the question using a methodology similar to the one developed by the Department's expert, Mr. Granata, and by the NCEE (National Council of Examiners for Engineering).

Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the challenge to the grading of Mr. Lord's response to question 144 on the April 1990 Professional Engineer licensure examination be dismissed. RECOMMENDED this 14th day of March, 1991, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 1991. COPIES FURNISHED: William F. Whitson, Law Clerk Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Curtis Lord 1416A Old Lystra Road Chapel Hill, NC 27514 Rex Smith, Executive Director Department of Professional Regulation Board of Professional Engineers 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792

Florida Laws (1) 120.57
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CHRISTINE FRANKLIN vs FLORIDA ENGINEERS MANAGEMENT CORPORATION, 01-000100 (2001)
Division of Administrative Hearings, Florida Filed:Fort Lauderdale, Florida Jan. 09, 2001 Number: 01-000100 Latest Update: Aug. 02, 2001

The Issue Whether Petitioner is entitled to additional credit for her solution to Problem 120 on the Principles and Practice of Engineering portion of the engineering licensure examination administered on April 14, 2000, by the National Council of Examiners for Engineers and Surveyors.

Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: On April 14, 2000, as part of her effort to obtain a Florida engineering license, Petitioner sat for the Principles and Practice of Engineering Examination (Examination). This is a national examination developed and administered by the National Council of Examiners for Engineers and Surveyors (NCEES). Petitioner chose to be tested in civil engineering. Petitioner received a raw score of 46 on the Examination. For the civil engineering specialization, a raw score of 46 converts to a score of 68. To pass the Examination, a converted score of 70 is needed. Petitioner formally requested that her solution to Problem 120 on the Examination be rescored. Petitioner's written request was referred to the NCEES. The NCEES's rescoring of Petitioner's solution to Problem 120 resulted in her receiving no additional points. The Board received the NCEES's rescoring results on or about December 5, 2000. After receiving a letter from Petitioner (dated December 14, 2000) requesting a "formal hearing," the Board referred the matter to the Division. Problem 120 was worth ten raw points. Petitioner received six raw points for her solution to Problem 120. In her solution to Problem 120, Petitioner failed to properly take into consideration the height of the water table, did not compute the factor of safety for load-bearing capacity in the manner required, and made an arithmetic mistake. Therefore, in accordance with the requirements and guidelines of the NCEES's scoring plan for this problem, the highest raw score that she could have received for her solution to this problem was a six, which is the score she received. In rescoring Petitioner's solution to this problem, the NCEES rescorer made the following "comments": The examinee made three errors. The solution approved by the Civil Engineering Exam committee called for a correction in requirement (a) for the mid height water table. The examinee ignored this correction. A two point grade reduction is called for. The examinee made a numerical error in evaluating the bearing capacity equation. This error called for a one point grade reduction. In evaluating the factor of safety the examinee added an erroneous load factor. A two point grade reduction is called for. With a total of five grade points lost a final grade of six is called for. SCORER'S RECOMMENDATION: Recommended score = six There has been no showing that the rescorer's analysis was in any way flawed.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered rejecting Petitioner's challenge to the failing score she received from the NCEES on the Principles and Practice of Engineering portion of the April 14, 2000, engineering licensure examination. DONE AND ENTERED this 16th day of April, 2001, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 2001.

Florida Laws (5) 120.57455.217471.013471.015471.038 Florida Administrative Code (6) 61-11.01061-11.01261-11.01561-11.01761G15-21.00161G15-21.004
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DEPARTMENT OF LAW ENFORCEMENT, CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION vs. CAREY A. REDDICK, 87-004929 (1987)
Division of Administrative Hearings, Florida Number: 87-004929 Latest Update: Feb. 15, 1988

Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The Respondent whose Social Security Number is 356-48-9981 was certified as a law enforcement office by the Criminal Justice Standards and Training Commission on December 18, 1985 and was issued certificate number 12- 85-222-02. At all times material to this proceeding, Respondent was a certified law enforcement officer. On or about April 23, 1987 Respondent entered a plea of nolo contendere to the charges of grand theft in the second degree, a violation Section 812.014, Florida Statutes and dealing in stolen property, a violation of Section 812.019, Florida Statutes. The Respondent was adjudged guilty of these offenses by the Circuit Court of Saint Lucie County, Florida on April 23, 1987.

Recommendation Having considered the evidence of record and the candor and demeanor of the witness, it is, therefore RECOMMENDED that the Commission enter a Final Order revoking the law enforcement officer certification (No. 12-85-222-02) of Respondent, Carey A. Reddick. Respectfully submitted and entered this 15th day of February, 1988, in Tallahassee, Florida. WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 1988. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Carey A. Reddick 15424 Loomis Harvey, IL 60426 Robert R. Dempsey Executive Director Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302

Florida Laws (7) 120.57775.08812.014812.019943.12943.13943.1395
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TYRONDA HOBBS vs CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION, 10-000054 (2010)
Division of Administrative Hearings, Florida Filed:Ortona, Florida Jan. 07, 2010 Number: 10-000054 Latest Update: Apr. 09, 2010

The Issue The issue in this case is whether Petitioner is entitled to credit for 14 challenged examination questions in the State Officers Certification Examination (SOCE) for Law Enforcement Officers.

Findings Of Fact Petitioner challenged 14 questions after failing the SOCE for the third and final time on September 30, 2009. The challenged questions are numbered 32, 62, 63, 79, 87, 128, 139, 154, 155, 156, 170, 187, 212, and 236. During the hearing, Petitioner withdrew her challenges to questions 79, 87, 155, and 212. Ten questions remain at issue in this proceeding. A preponderance of the evidence does not support Petitioner’s challenges to the 10 questions at issue. Expert testimony shows the challenged questions were validated through appropriate field testing. The questions are accurate to the curriculum and perform sufficiently during testing. The correct answer to each challenged question was identified in the curriculum by expert testimony during the hearing. The statistical probability of an examinee answering a question correctly is identified in the record by a "P" value. For challenged question 32, the “P” value was 0.80, which means that 80 percent of examinees answered the question correctly. Only 78 of 5,220 examinees chose the answer chosen by Petitioner for question 32. The "P" value for challenged question 62 was 0.76, meaning that 76 percent of examinees answered the question correctly. Only 222 of 1,655 examinees chose the response that Petitioner chose for question 62. The "P" value for challenged question 63 was 0.95, meaning that 95 percent of examinees answered the question correctly. Only 150 of 3,387 examinees chose the response that Petitioner chose for question 63. The "P" value for challenged question 128 was 0.59, meaning that 59 percent of examinees answered the question correctly. Approximately 2,142 of 4,456 examinees chose the response that Petitioner chose for question 128. The "P" value for challenged question 139 was 0.93, meaning that 93 percent of examinees answered the question correctly. Only 20 of 568 examinees chose the response that Petitioner chose for question 139. The "P" value for challenged question 154 was 0.90, meaning that 90 percent of examinees answered the question correctly. Only 51 of 4,331 examinees chose the response that Petitioner chose for question 154. The "P" value for challenged question 156 was 0.80, meaning that 80 percent of examinees answered the question correctly. Only 404 of 5,721 examinees chose the response that Petitioner chose for question 156. The "P" value for challenged question 170 was 0.81, meaning that 81 percent of examinees answered the question correctly. Only 596 of 4,681 examinees chose the response that Petitioner chose for question 170. The "P" value for challenged question 187 was 0.90, meaning that 90 percent of examinees answered the question correctly. Only 28 of 2,908 examinees chose the response that Petitioner chose for question 187. The "P" value for challenged question 236 was 0.92, meaning that 92 percent of examinees answered the question correctly. Only 133 of 2,449 examinees chose the response that Petitioner chose for question 236.

Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order denying Petitioner’s challenge to the 10 examination questions from the September 20, 2009, Law Enforcement State Officer Certification Examination numbered 32, 62, 63, 128, 139, 154, 156, 170, 187, and 236. DONE AND ENTERED this 9th day of April, 2010, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 2010.

Florida Laws (3) 943.13943.1397943.17 Florida Administrative Code (2) 11B-30.006211B-30.012
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JOHN EUGENE HARDEN AND DOVA CAUTHEN vs. ELECTRICAL CONTRACTORS LICENSING BOARD, 84-000309RU (1984)
Division of Administrative Hearings, Florida Number: 84-000309RU Latest Update: Mar. 04, 1986

Findings Of Fact Based on the stipulations and admissions of the parties, the exhibits received in evidence, and the testimony of the witnesses at the hearing in this case, I make the following findings of fact. Findings based on stipulations and admissions of the parties The Petitioners, John Eugene Harden and Dova Cauthen, qualified for and were administered the January 1982 Electrical Contractors' Licensing Examination. After their examinations were graded and regraded, Petitioners were notified that they had not received a "Passing" score of 75 or more. The Petitioners, John Eugene Harden and Dova Cauthen, qualified for and were administered the July 1982 Electrical Contractors' Licensing Examination. After their examinations were graded and regraded, Petitioners were notified that they had not received a "Passing" score of 75 or more. Both Petitioners reside in Dade County, Florida. The Respondent Department of Professional Regulation (hereafter DPR or the "Department") is an agency of the State of Florida. The Respondent Electrical Contractors' Licensing Board (hereafter referred to as the "Board") is an agency of the State of Florida statutorily responsible, along with DPR, for licensing certified electrical contractors. The Office of the Executive Director of the Board is located at 130 North Monroe Street, Tallahassee, Florida. The business address of Petitioner Harden is Harden Electric, 311 N.E. 8th Street, Homestead, Florida 33030. The business address of Petitioner Cauthen is 959 N.E. 79th Street, Miami, Florida 33138. 8. On March 20, 1981, Rules 21GG-6.01 (2), 21GG-6.01 (3), 21GG-6.01 (4), of the Rules of the Electrical Contractors' Licensing Board, were amended. Rule 21GG-6.01 (2) altered the format of the licensing examination so that the formerly entirely open book examination became a part open book, part closed book examination. Rule 21GG-6.01 (4) raised the passing grade on the licensing examination from 70 to 75. Rule 21GG-6.01 (3) altered the technical format. On December 3, 1981, Susan Tully, counsel to the Electrical Contractors' Licensing Board, caused a change to be made in Rule 21GG-6.01 (1) (c) of the Rules of the Electrical Contractors' Licensing Board. This change was made without formal notice or informal notice to the public and without a vote of the Electrical Contractors' Licensing Board, although the change was discussed at a Board meeting. None of the procedures set forth in Section 120.54 of the Florida Statutes were followed in amending this Rule. Liz Cloud was the Bureau Chief of the Division of Elections, Bureau of Administrative Code, Department of State. The address of the Bureau is Room 1802, The Capitol Building, Tallahassee, Florida. The change in Rule 21GG-6.01 (1)(c) eliminated parts 72 A, B, C and D and indicated that the entire Fire Safety Code (and not just the aforementioned parts) would be a subject of the Electrical Contractors' Licensing Examinations. In fact, the reason for the alleged "technical change" was that the Board intended and tested examinees in the January and July 1982 Licensing Examinations on materials in parts of the Fire Safety Code in addition to those contained in 72 A, B, C and D of the Fire Safety Code. Petitioner Harden specifically requested to review his January and July 1982 Electrical Contractors' Licensing Examinations. On March 25, 1982, Petitioner Harden went to Tallahassee, Florida to review his January 1982 Licensing Examination papers, but although he requested an "examination review" he was never provided with his own examination booklet or a copy thereof. During this alleged "examination review" Mr. Harden wrote written objections to the January 1982 examination on the forms provided to him based on the master copy of the examination provided to him. On August 31, 1982, Petitioner Harden went to Tallahassee, Florida to review his July 1982 Licensing Examination papers, but although he requested an "examination review" he was never provided with his own examination booklet or a copy thereof. During this alleged "examination review" Mr. Harden wrote written objections to the July 1982 examination on the forms provided to him based on the master copy of the examination provided to him. Petitioner Cauthen specifically requested an "examination review" with respect to her January and July 1982 Licensing Examination papers. On March 17, 1982, Petitioner Cauthen went to Tallahassee, Florida to review her January 1982 Licensing Exami-nation papers, but although she requested an "examination review" she was never provided with her own examination booklet or a copy thereof. During this alleged "examination review" Ms. Cauthen wrote written objections to the January 1982 examination on the forms provided to her based on the master copy of the examination provided to her. On August, 19, 1982 Petitioner Cauthen went to Tallahassee, Florida to review her July 1982 Licensing Examination papers, but although she requested an "examination review" she was never provided with her own examination booklet or a copy thereof. During this alleged "examination review" Ms. Cauthen wrote written objections to the July 1982 examination on the forms provided to her based on the master copy of the examination provided to her. Petitioners Harden and Cauthen sought Board review of their January and July 1982 Electrical Contractors' Licensing Examinations. Petitioners were advised in July 1983 that no copies of their actual booklets exist; Petitioners were advised in October 1983 that their actual booklets were shredded. At the November 8, 1982, meeting of the Board, Ms. Ida Cameron representing DPR, presented to the Board a package of information (assembled in package form) for the Board to consider during the examination review. With regard to Question Number 71 on the afternoon portion of the July 1982 Licensing Examination, two of the four possible responses, "A" and "C" were credited. Candidates like Petitioner Cauthen who answered "B" received no credit for the question. Petitioners Harden and Cauthen have requested Chapter 120.57 hearings with respect to their January and July 1982 licensing examinations and the review, grading and agency action with respect to same. Although request for production was specifically made for said packages of information with respect to the January 1982 and July 1982 licensing examinations in February, 1983, no packages have been produced to date. DPR destroyed the Petitioners' examination booklets before the end of the two year period immediately following each of the 1982 examinations. That Section 455.217 of the Florida Statutes requires the Board "by rule" to designate areas of competency to be covered by each licensing examination. That Section 455.217 states that the Board shall "by rule specify the general areas of competency to be covered by each examination, the relative weight to be assigned in grading each area tested, and the score necessary to achieve a passing grade." That the amendment of Rule 21GG-6.01 (2) required candidates to commit to memory portions of the electrical code, accounting, law, worker's compensation rules, federal employer's tax guide, A1A General Conditions, business practices; legal and insurance requirements. In the July 1982 Electrical Contractors' Licensing Examination candidates were given one hour more time in which to take the examination than was given during the January 1982 examination. Rule 21GG-6.01 (4) was amended in conjunction with Rules 21GG-6.01 (1)(a), (2) and (3) at a board hearing in March, 1981. Rule 21GG-6.01 (4) raised the passing score on the January 1982 Electrical Contractors' Examination and the July 1982 Electrical Contractors' Examination from 70 to 75. The amendment to Rule 21GG-6.01 (4) required that electrical contractors pass the certification examination with a score of 75 percent, whereas all other construction industry licensing board contractors licensed by the Department of Professional Regulation (13 other categories) were merely required to achieve a 70 percent pass score. That Section 455.217 of the Florida Statutes provides that "The board shall make rules providing for reexamination of any applicants who have failed the examination." That DPR did not and has never provided Petitioners, their attorneys or agents with their own examination booklets for the January and July 1982 Electrical Contractors' Licensing Examinations. DPR has provided Petitioners only with copies of "master" examinations for their review. That Section 455.217 of the Florida Statutes provides that the Board shall make available an examination review procedure for applicants. That the Respondents produced Notice of Destruction of Examination Booklets and Other Examination Materials dated April 14, 1982, which allegedly evidences destruction of Petitioners' examination booklets for the January 7, 1982, Examination on April 14, 1982. That the Respondents produced Notice of Destruction of Examination Booklets and Other Examination Materials dated October 15, 1982, which allegedly evidences destruction of Petitioners' examination booklets for the July 13, 1982, Examination on October 15, 1982. The findings in paragraphs 1 through 33, immediately above, are based directly on the stipulations of the parties, most of which stipulations were memorialized at the beginning of the hearing. The findings in the following paragraphs are based primarily on testimony and exhibits, but some of them are also based in whole or in part on stipulations. In the findings which follow there are certain to be at least some repetitious findings in the course of putting matters into context and making additional findings which are related to some of the stipulated findings. I have tried to avoid all unnecessary repetition, but a certain amount is necessary for clarity and a certain amount is unavoidable due to the sheer size of the task at hand. Findings on background matters and on matters relating to more than one rule Both of the Petitioners in this rule challenge proceeding are individuals who have applied to the Electrical Contractors' Licensing Board for licensure as certified electrical contractors. Both of them have been approved to sit for the licensure examination. Petitioner Harden took the Board's licensure examination on each of the following occasions: July 1981, January 1982, July 1982, and January 1983. The Board has not given him a passing grade on any of those' four examinations. Petitioner Cauthen took the Board's licensure examination on two occasions: January 1982 and July 1982. The Board has not given her a passing grade on either of those two examinations. The grade notifications received by these Petitioners show, inter alia, that Petitioner Cauthen received a grade of 73 on the July 1982 examination. Both of these Petitioners have presently pending formal proceedings under Section 120.57(1), Florida Statutes, in which they are challenging various matters related to the preparation of, administration of, scoring of, and inherent validity of the Board's January 1982 and July 1982 licensure examinations. The Electrical Contractors' Licensing Board certification examination is different from a master electrician examination. However, the two examinations are in many ways similar because of the overlap in the nature of the subject matter to be tested on both examinations. The passing score or cut score on the local master electrician examination administered by Dade County is 70 percent. Most of the questions on that examination are about the National Electric Code. Part of the Dade County master electrician exam is closed book. Prior to 1972, persons wishing to engage in electrical contracting in the state of Florida were required to be licensed by the local governments in the areas in which they sought to operate. Since 1972, persons wishing to engage in electrical contracting in the state of Florida must be licensed by a unit of local government or by the Electrical Contractors' Licensing Board. Persons who are licensed by the Electrical Contractors' Licensing Board are known as certified electrical contractors. A certified electrical contractor can engage in electrical contracting anywhere in the state of Florida without local licensure. Persons who are licensed by one or more local governments (typically a municipality or a county) are known as registered electrical contractors. Registered electrical con-tractors are licensed to engage in electrical contracting only in the geographic areas encompassed by the boundaries of the local government entities that issued their local licenses. There is, however, a certain amount of reciprocity from one local government to another. Certification as a state certified electrical contractor does not authorize the electrical contractor to work as an electrician, although a certified electrical contractor can pull permits. A person does not have to be a licensed electrician in order to become a state certified electrical contractor, although many electrical contractors are also licensed as journeyman or master electricians. Candidates for the electrical contractor licensure examination have a great $ variety in the nature and scope of their background and experience. This variety in background and experience is among the reasons which cause testing for minimum competence as an electrical contractor not to be an exact science. As between certification and registration, certification by the Electrical Contractors' Licensing Board is not a major factor in the ability to compete for business. A person who has a statewide certification can save some money by avoiding the expense of obtaining local competency cards, but as a general rule a registered electrical contractor can work just about anywhere in the state due to reciprocity. Especially, a person who has passed a Block master electrician examination or a Block local electrical contractor's examination can work just about anywhere in the state because most counties in Florida accept the Block examination. Registered electrical contractors regularly compete for business with certified electrical contractors. For example, Petitioner Cauthen's company is presently licensed in Monroe, Dade, and Broward counties, where it does a considerable amount of business. Petitioner Cauthen's company bids on lots of contracts and submits bids in competition with both registered and certified electrical contractors. Thus, the company is already in competition with certified electrical contractors. Similarly Board Member Isaacs, whose certified company does 90 percent of its work in Duval County, has regular competition from registered electrical contractors. Board Member Isaacs competes with approximately 250 electrical contractors. Of that 250, approximately 175 are registered and the others are certified. A much bigger factor in competition than the registration versus certification issue is the cost of doing business in more than one area or the cost of doing business at a location that is distant from one's primary base of operations. Only about fifty electrical contracting firms regularly compete for business over the entire state of Florida. Accordingly, a restriction on the number of persons licensed by the Board as certified electrical contractors would have minimal, if any, limitation on the competition faced by those members of the Board who are certified electrical contractors. The Electrical Contractors' Licensing Board admin-istered its own certification licensure examination from 1972 through 1980. During that period of time the Board administered the examination a total of twenty-two times. During those twenty-two sessions of Board administered examinations, a total of 824 candidates sat for the examination, of which 392 were successful. Although the percentage of candidates who were successful on a particular Board administered examination ranged from a low of 20.7 percent to a high of 78.8 percent, the average passing rate of all candidates on all twenty- two of the Board administered examinations was 47.57 percent. (By way of comparison, it is interesting to note that the percentage of candidates who are successful on the Block master electrician examination is between 30 percent and 35 percent of those who take the examination.) Further, on fifteen of the twenty-two occasions on which the Board administered the examination, the percentage of candidates who were successful was 50 percent or less. In 1979, the regulation of professions and occupations was reorganized. The Department of Professional Regulation (the Department) was created as an umbrella agency over numerous boards, including the Electrical Contractors' Licensing Board and the Construction Industry Licensing Board. The responsibility for examining applicants, which in the case of the Electrical Contractors' Licensing Board had been handled by the Board members themselves, was taken over by the Office of Examination Services (O.E.S.). Toward the end of 1980 and the beginning of 1981, O.E.S. did not like what the Board was doing and the Board did not like what O.E.S. was doing. There was a general lack of trust between the two entities, there was poor communication between the two entities, and the relationship between them at that time might best be described as estranged. Although both entities made efforts at cooperation with the other, such efforts were not always effective or well received. As a result of the poor communication between the two entities, certain personal concerns over Board actions by individuals within the O.E.S. were never communicated to the Board (and therefore could not be answered. 4/ The first examination administered by the O.E.S. was in January 1981. Of the fifty candidates who took the January 1981 examination, forty-six were successful. This was a passing rate of 92 percent. In view of the Board's experience when it was administering its own examination, the Board was understandably surprised and concerned when the percentage of candidates passing the first O.E.S. administered examination was almost twice the average passing percentage on the Board administered examinations. The Board had no evidence that the overall qualifications or capabilities of the applicants examined by O.E.S. at the January 1981 examination were any higher than the capabilities of those examined previously. To the contrary, a review of their qualifications based on the information in their applications indicated that their qualifications were substantially the same as those of previous candidates tested by the Board. Also, the admission standards for the January 1981 examination were the same as those for prior examinations. The Board concerns about the O.E.S. administered January 1981 examination included the following matters, among others, memorialized at a Board meeting discussing the examinations: The candidates had been allowed to take any reference material desired into the exami- nation. Previously the Board had allowed only reference books listed as part of the application form. There was a very high pass rate in compar- ison to all past examinations. There appeared to be too few calculation questions. The questions had been placed on the paper in sequence with the reference book materials. There was a possibility that notes were taken into the examination which would have given advantage to the candidates. The Board's Examination Committee had been under the assumption that the entire examination would be presented for review of the questions. Instead the only questions presented were ones questionable under Department criteria for measuring competency. It was explained, from past experience, that persons conducting the seminars for exams had obtained the entire exam content from persons taking the examination in the past. It had been done with a camera which was taken into the examination. The Board, when administer- ing the examination, had been very strict on what was used in performing the examination. In the last exam the security was very poor. The Board felt there were so few calculation questions on the O.E.S. administered examination in January of 1981 that the examination was not a proper or sufficient examination. This was due at least in part to the fact that O.E.S. had difficulty covering all areas of the examination with the desired number of questions because the O.E.S. bank of questions was very limited at that time. Previous Board examinations were open book with certain reference material allowed. When the Office of Examination Services took over the administration of the January 1981 exams, it sent to the candidates a form letter adapted from the Construction Industry Licensing Board. This form letter instructed the candidates that they would be able to bring into the examination any notes and other materials desired. This was contrary to the past practice of the Board and contrary to the Board's wishes. The Board was very frustrated and concerned about the circumstances which led up to the January 1981 examination because the O.E.S. had refused to allow the Board to have any input into the examination and the Board thought the O.E.S. had come up with an apprentice level examination. In the Board's opinion, the January 1981 examination prepared by O.E.S. clearly tested at a level less than that of minimum competency. And, although O.E.S. did not agree with the Board that the January examination was invalid, O.E.S. did agree that the examination was a lot easier than they had thought it would be. The Electrical Contractors' Licensing Board did not conduct any formal studies or formal analysis prior to making the 1981 amendments to Rule 21GG-6.01 changing the format of the examination and the cut score. However, the Board's Rules Committee did a great deal of work on the matter and the matter was discussed extensively at Board meetings. In this regard it is important to keep in mind that the Board members (with the exception of the two lay members) were all experienced practicing electrical contractors who were familiar with the requirements of day-to-day electrical contracting. The Board's decision to change part of the examination to closed book was due to a concern that people with no electrical knowledge could become licensed if the examination was all open book and had a low percentage of technical questions. The Board felt that more than half of the examination should be technical questions. The closed book National Electrical Code questions were for the purpose of testing what a person with experience in the field of electrical contracting should know about everyday matters. The primary, if not the sole, motivation for the Board's 1981 amendments to Rule 21GG-6.01 was the Board's concern about the quality of the O.E.S. administered examination and the Board's feeling that, due to its estranged relationship with O.E.S., the only vehicle through which it could effectively influence the quality of future examinations was through rule- making. Those amendments were not motivated by any desire on the part of the Board to restrict competition in the field of electrical contracting. During the past few years the job requirements of an electrical contractor have remained substantially the same. Block and Associates (hereinafter "Block") is a company based in Gainesville, Florida, that writes licensure examinations for contractors in various trades. Block writes such examinations for cities, counties, and states. Block has prepared electrical contracting licensure examinations for the states of Florida, Georgia, and Oklahoma, as well as for St. Johns County, Florida. Block prepares licensure examinations for just about anything that involves electricity, including such things as electrical contracting, electrical journeyman, electrical-master, low voltage, elevator, burglar alarm and fire alarm Block prepares master electrician examinations for over one hundred governmental entities. The Block electrical master exams and the Block electrical contractor exams use some of the same questions. Subsequent to the 1982 examinations which form the gravamen of these Petitioners' related proceedings under Section 120.57, Florida Statutes, the ECLB has contracted with Block and Associates to prepare the Board's certification licensure examination. The Board has never said anything to Block about wanting to achieve any particular passing rate or wanting to have any particular percentage of the candidates taking the examination achieve a passing score. The Board has never interfered with Block's autonomy in the preparation of the electrical contractor exam. All of Block's electrical contractor examinations include business questions. It is important to test for business skills because an electrical contractor who gets into business trouble may start cutting corners and cutting corners is a hazard to the public. Some of Block's electrical contractor examinations also have specific sections on safety. Block always does a post-administration statistical analysis of the examinations questions it uses. The reason for this is to find out if anything is wrong with the questions; in other words, to determine whether the questions are valid. The computer program used by Block to check the validity of its tests was prepared for Block by a professor in the College of Education at the University of Florida. Block uses a computer to conduct a validity analysis of each test it administers. Findings regarding Rule 21GG- 6.01(1)(c) of the Electrical Contractors' Licensing Board Rule 21GG-6.01(1)(c) of the Electrical Contractors' Licensing Board reads as follows (with the portion challenged by the Petitioners underscored): The areas of competency to be covered by the certification examination shall be as follows: (a) *** (c) Safety, which shall include but not be limited to, OSHA regulations, life safety codes, and the Fire Safety Code (NFPA). Prior to the December 1981 amendment which is challenged here, Rule 2100-6.01(1)(c) read as follows: The areas of competency to be covered by the certification examination shall be as follows: (a) *** (c) Safety, which shall include but not be limited to, OSHA regulations, life safety codes, and the fire safety code (NFPA 72A, B, C and D). The Board's purpose in amending the rule to delete the reference to "72A, B, C and D" was to make it clear to candidates for examination that the Board' intended to include in the safety portion of its examinations questions from portions of Volume Seven of the NFPA other than Chapters 72 A, B, C, and D of that volume. Volume Seven of the NFPA contains quite a bit of material in addition to the material included in Chapters 72 A, B, C, and D of that volume. In view of the modifying phrase "shall include but not be limited to," the amendment to delete the reference to Chapters 72 A, B, C and D was not a necessary prerequisite to the use of examination questions based on other portions of Volume Seven of the NFPA. The Board could ask the same examination questions before and after the amendment. Several weeks before each examination, the Department of Professional Regulation sent all candidates for examination, including these Petitioners, a notice to appear for the examination. The notice to appear included a list of reference books on which the examination was to be based. That list of reference books contained a specific reference to Volume Seven of the NFPA. All sixteen volumes which comprise the entire NFPA were not listed as reference books. Neither of these Petitioners demonstrated that he or she was genuinely confused or misdirected by the amendment to Rule 21GG-6.01(1)(c). Neither Petitioner contended he or she had studied all sixteen volumes of the NFPA. Instead, both Petitioners studied from the books on the reference list. Neither Petitioner has an application for the examination pending; neither claims an intention to take the examination again. Findings regarding Rule 21GG- 6.01(1), (2), (3), and (4) of the Electrical Contractors' Licensing Board At the time of the examinations which are the subject of these Petitioners' related cases under Section 120.57, Florida Statutes, Rule 21GG- 6.01(1), (2), (3), and (4) of the Electrical Contractors' Licensing Board read as follows, in pertinent part: The areas of competency to be covered by the certification examination shall be as follows: Technical, which shall include, but not be limited to, electrical calculations, estimating, designs, and electrical schematics; and which shall be divided into two (2) separate areas, one containing electrical calculations, the other containing Code-related questions not requiring calculations. General business, which shall include but not be limited to, problems relating to accounting, law, insurance, workers' compen- sation and social security; The format of the examination shall be as follows: The portions of the examination con- taining the electrical calculations and $ safety questions shall be open book. The applicant is responsible for bringing and may.. use during these portions the applicable code books, reference materials as approved by the Board, and noiseless mechanical or non- mechanical instruments he wishes to use. The portions of the examination con- taining the noncalculation technical questions and all business questions shall be closed-book. The applicant will not be permitted to use the reference materials listed in 2(a) or any other reference materials. Security measures as set forth by the Department shall be followed during both portions of the examination. The relative grading weight to be assigned to each area of competency shall be approximately as follows: Technical - 60 percent Electrical Calculations-40 percent of Test Code-related questions-20 percent of Test General business - 30 percent Safety - 10 percent An applicant shall be required to achieve a score of a general average of not less than seventy-five percent (75 percent) in order to pass the examination and be certified for licensure. There shall not be a practical or clinical examination. The language quoted above is the language of the relevant portions of the rule as it read after the March 1981 amendments to the rule. The principal amendments in March of 1981 may be summarized as follows: (1) changes which divided technical questions on the examination into two separate areas, (2) changes which made part of the examination open book and part closed book [it was previously all open book, and (3) a change in the minimum passing score from 70 percent to 75 percent. These Petitioners challenge the validity of all three of the principal amendments. As originally proposed, the March 1981 amendments to subsection (2)(a) of Rule 21GG-6.01 would have permitted a candidate to bring "any notes" to the open book portion of the examination. During the adoption process the words "and any notes" were deleted from the amendment by the Board. The words "and any notes" did not appear in Rule 21GG-6.01 prior to the 1981 amendments. Nor was it the practice of the Board prior to 1981 to permit candidates for examination to take any notes into the examination when it was administered by the Board. Findings regarding examination content and relative grading weights In November of 1983 the Electrical Contractors' Licensing Board again amended Rule 21GG-6.01(3) to change the relative grading weights of the areas of competency to be tested. After November of 1983 the relative grading weights of the areas of competency were as follows: Technical increased from 60 percent to 65 percent; electrical calculations increased from 40 percent to 45 percent; code related questions remained 20 percent of the examination; general business was decreased from 30 percent to 25 percent of the examination; and safety remained 10 percent of the examination. 5/ The licensing examination given by the Board has historically contained materials testing knowledge of electrical work and also materials testing the business qualifications of the applicants. Since the inception of the Board's licensing exam, the electrical work portions have contained electrical calculations. Throughout the time the Board has been administering licensure examinations for certification, the percentages of the examination devoted to particular subject areas have been based upon the Board's belief as to the appropriate levels of knowledge needed by a certified electrical contractor. The weighting of the examination was equitable when it was weighted 60 percent technical, 30 percent business, and 10 percent safety, and it is still equitable now that it is weighted 65 percent technical, 25 percent business, and 10 percent safety. The Board changed to the current percentages at the suggestion of Block and Associates. The Board's examination has had similar ratios for a long time, at least as far back as 1971. The proportions of the examination devoted to each particular subject matter did not change due to the March 1981 amendments. With the exception of the January 1981 examination put together by O.E.S., electrical calculations had historically been 40 percent of the test. Since the Board felt this percentage should be maintained, and since it was necessary to divide those calculations from the other portion of the technical section (since one would be tested in the closed book portion and the other in the open book portion), the division of the technical part of the exam was set out in the rule. On an electrical contractor licensure examination it is appropriate to include in the area of "technical" questions, questions dealing with the following subjects: electrical calculations, parts of estimating, and designs and electrical schematics. In the "business" portion of an electrical contractor examination, it is appropriate to include questions dealing with the following: accounting, worker compensation, and social security. Findings regarding closed book versus open book examinations Local licensing examinations had, in 1981, included a closed book portion. Local licensing examinations and state licensing examinations given in other states still include such a closed book portion. The basic Block examination has always included a closed book portion. Closed book examinations are not all that unusual in occupational and professional licensure testing. The CPA an Nursing examinations are closed book. Also, virtually all of the electrical examinations administered by Block and Associates include a closed book portion. The advantage of a closed book examination technique is that it is easier to identify the candidates who have had practical experience in the subject matter being tested. A closed book examination is a better test for field experience and for general knowledge of the subject matter being tested. Certain questions known as "anchor" questions was given both in the open book examination before the format change and in the closed book section after the format changed. The relative performance by candidates on the same questions in the two formats shows the format change not to have prejudiced the candidates. Further, an examination analysis of the results of the closed book portions of the ECLB examinations reveals that, based on candidate performance, the closed book portion of the examinations was easier than the open book portion. This also shows that the format change did not prejudice the candidates. Findings regarding "cut scores" From 1972 until the rule changes in 1981, the minimum passing score, or "cut score," set by the Board for the certification licensure examination was 70 percent. Cut scores of both 70 percent and 75 percent are very common cut scores for licensure examinations in the fields of electrical contracting, journeyman electrician, and master electrician, as well as licensure examinations in other occupations and professions. Many local licensure examinations have a 75 percent cut score. Standing alone, the cut score to be applied to a future examination is somewhat lacking in specific significance. A cut score must be considered in relation to the content of the examination to which it is to be applied. All of the testing experts who testified at the hearing agreed that setting an examination cub score is an inherently arbitrary decision. In the final analysis it is a judgment call that cannot be made with scientific exactitude and is unavoidably arbitrary to a certain extent. As explained by one of the Petitioners' testing experts, even though statistical methodology is available for the determination of cut scores, to a large extent the cut score is a random decision, the validity of which can be assessed only in relationship to the specific testing instrument to which it is applied. For example, during the course of Block's preparation of its first licensure examination in 1958 for the City of Ormond Beach, when it came time to decide what cut score to use, the five experts who were preparing the examination talked it over and decided that 75 percent was the equivalent' of a good. "C" when compared to academic grades, and they decided to use 75 percent as their cut score. It is not possible to be much more scientific or precise than that in setting cut scores, especially when one has a group of candidates of varied experience and background taking the examination. A skilled test preparer can construct an examination of equal validity within a range of cut scores from 65 percent to 80 percent if the test preparer knows at the time of constructing the examination what the cut score will be. With any cut score in that range, a skilled test preparer can raise or lower the percentage of candidates who will actually pass the examination by careful selection of the questions to be used on the examination. By using easy questions, the person preparing the examination can insure that more people will pass a test with a high cut score. Similarly, by using hard questions, the person preparing the examination can insure that fewer people will pass an examination with a low cut score. On some standardized licensure examinations the cut score is determined after the examination results are examined. In other words, the examination results are "curved" based on the performance of the group of candidates who take a particular session of the examination and the actual cut score is determined in relationship to the raw scores achieved by each particular group of candidates. This flexible method of setting cut scores seems to work well on standardized examinations which are administered to large numbers of candidates, but it is questionable whether it would work very well with small groups of candidates. The Board's examinations have historically been administered to small groups of candidates. Findings regarding the effects of changes on testing instruments. In order for a licensure examination to accomplish the purpose for which it is administered, it should, of course, be valid and reliable. Several of the Petitioners' expert witnesses described what might be characterized as the best way to make changes to an examination or as the ideal way to make changes to an examination. Nevertheless, the manner in which the Electrical Contractors' Licensing Board went about making the changes to the examination which were incorporated in the March 1981 rule changes was a reasonable and logical response to the circumstances faced by the Board. It was perhaps not the best way to have resolved matters, but it was a reasonable response. The Board's action in this regard was not arbitrary or capricious. Even the Petitioners' most persuasive expert in the field of testing conceded that if the content experts (in this case the Board members) felt that given a specific content domain and given a specific item bank the testing instrument measured less than minimum competency, a logical response would be to raise the cut score. Another logical reaction to that situation would be to change a portion of the examination from open book to closed book. Both actions would be reasonable and logical responses to that type of problem. Where there has been a modification in the format of a testing instrument, an accepted methodology for analysis of the effects of format modification is the use of repetitive questions from prior testing instruments. These repetitive questions are known as "anchor" questions. If a statistically significant deviation in performance on the anchor questions is demonstrated, the format modification requires further analysis through other statistical tools. However, if an analysis of the anchor questions shows inconclusive or mixed results on the anchor questions (such as equal or improved candidate performance on those questions), it may then be concluded that the format change is not significant to candidate performance and may be an appropriate format change relative to the profession or occupation being examined. Content validity is the most practical' measure of the validity of a licensure examination. The content validity of an examination depends on the extent to which the questions on an examination may be accepted as representative of performance within a specifically defined content domain of which the examination instrument is a sample. Content validation would be the best way to determine the validity of the examinations which were administered in 1982 pursuant to the March 1981 rule amendments. One method of establishing content validity is to have a group of experts identify the domains of knowledge that are applicable to the profession or occupation being tested. The establishment of content validity relies heavily on the opinions and judgments of people who are experts in the relevant profession or occupation. Expert judgment plays a integral part in developing the definition of the content domain to be tested. To the extent that the content domain of Boar examinations was established by the March 1981 amendments to Rule 21GG-6.01(3), the content domain was established on the basis of the expert judgment of persons who were experts in the field of electrical contracting, namely, the members of the Electrical Contractors' Licensing Board. The relative grading weights established in the 1981 amendments to Rule 21GG-6.01(3) have at least a possible correlation to electrical contractor competence. In fact, the persuasive expert testimony establishes that those relative grading weights did bear a reasonable relationship to electrical contractor competence. The current slightly different relative grading weights also bear a reasonable relationship to electrical contractor competence even though there has been no recent change in the nature of the responsibilities of electrical contractors. In this regard it must be remembered that testing is not an exact science and no test for minimum competency can ever be expected to be an exact model of actual work experience. The best that can be expected is a reasonable model. There are various accepted methodologies for the creation of standardized examinations, adherence to which tends to enhance the likelihood that the examination instrument finally produced will be valid and reliable. However, adherence to those accepted procedures is not a necessary prerequisite to creation of a valid and reliable examination. This is particularly true when one is going to be testing small groups of people with varied backgrounds instead of the massive groups of people with similar backgrounds for whom standardized tests are more typically designed. In the final analysis the only practical and reliable measure of the validity of an examination is by statistical analysis of the examination after it has been administered. Given the nature of the circumstances faced by the Board at the time of the March 1981 amendments to the examination format and cut score, given the nature of the pool of candidates to be examined, given the nature of the changes contemplated by the Board, and given the very nature of the process of testing for minimum competency--which involves perhaps as much art as it does science-- there is no study or data which would have been particularly useful to the Board in helping to determine exactly what the effect of their changes would be. Such effects can only be determined or measured with any degree of accuracy after the administration of an examination that incorporated the changes. Following the administration of such an examination, it is possible to perform a statistical analysis of all questions used on the examination and to eliminate or give credit for any questions which are shown by statistical analysis to be invalid or unreliable. This is precisely the process that is used by Block in the validation of their examinations and is an accepted testing procedure. It would have served no useful purpose to have conducted a trial run of an examination using licensed certified electrical contractors as a test group for the new examination format. First, it would be virtually impossible to try to put together an accurate cross-section of certified electrical contractors to use as a test group. Second, one would expect them all to pass the examination, so when they did so nothing of value would have been learned. Finally, the administration of such a trial run would risk the possibility of compromising examination question security. One aspect of accepted methodology for the preparation of standardized examinations is the definition of the content domain of the examination, i.e., a determination of what knowledge is essential to demonstrate that the candidates for licensure are minimally competent. This aspect of examination preparation is often accomplished by performing a formal job analysis, which is, in essence, a study of all of the usual tasks performed by a person engaged in the occupation or profession to be tested, including an evaluation of the relative importance of each of those tasks to minimum competence. The content domain can also be defined on the basis of the judgment of a group of experts in the occupation or profession to be tested. With the exception of the lay members who were added in recent years, all of the members of the Electrical Contractors' Licensing Board are, and have been, persons certified to engage in electrical contracting in the state of Florida and actively engaged in the electrical contracting business. Therefore, at all relevant times all of the professional members of the Board had extensive personal knowledge of what was involved in the practice of electrical contracting, which personal knowledge was as useful in defining content domain as would have been a formal job analysis. (In this regard it is important to note that even with the addition of lay members to the Board in recent years, the experienced professional members have continued to constitute a substantial majority of the Board.) Findings regarding Rule 21GG-6.0 of the Electrical Contractors' Licensing Board Rule 21GG-6.03 of the Electrical Contractors' Licensing Board reads as follows: An examinee is entitled to review his examination questions, answers, papers, grades and grading key used in the certification examination; however, no applicant may copy any materials provided for his review. Such review shall be conducted during regular business hours, in the presence of a representative of the Board at the Board's official headquarters. If, following the review of his exami- nation, an examinee believes that an error was made in the grading of his examination, or in the evaluation of his answers, he may request the Board to review his examination. Requests for Board review must be in writing, state with specificity the reason why review is requested, and be received within thirty (30) days after the examinee received notice that he failed the examination. (3) Upon receipt of a request for Board review, the examination shall be reviewed by the Board at the next regularly scheduled Board meeting. If it is found that an error was made, the grade received by the examinee may be adjusted to reflect the correction. The examinee shall be notified of the final decision. The Petitioners' only challenge to Rule 21GG-6.03 is predicated upon their concern that it may be misapplied to them by the Board. Findings regarding Rule 21-11.11(3) of the Department of Professional Regulation as it existed prior to the October 1982 amendments Prior to the October 1982 amendments, Rule 21-11.11(3) of the Department of Professional Regulation read as follows: (3) Examination grade reviews shall be conducted at a site designated by the Department. The candidate and his/her attorney or other qualified representative shall be allowed to attend the examination grade review. A candidate may attend only one review per examination administration. The above quoted version of the rule was in effect at the time of the Petitioners' reviews of their January and July 1982 examinations. Findings regarding Rule 21-11.11(3) of the Department of Professional Regulation, as amended in October of 198 Rule 21-11.11(3) of the Department of Professional Regulation, as amended in October of 1982, reads as follows, in pertinent part: A candidate taking a Department exam- nation may request and receive an appointment for review until such times as the exam- ination records are destroyed in accordance with Chapters 455, 119 and 267, Florida Statutes. However, unless otherwise provided by a rule of the appropriate Board within the Department, candidates may review their exam- ination for the purpose of filing objections to the examination for the Board's consideration under the following conditions and time frame: Within thirty (30) days of the date of the grade notification letter the candidate shall notify the Department of his/her desir to review the examination for the purpose of filing objections for consideration. Such review shall have been completed within the next thirty (30) days after the first thirty (30) days defined in (a) above. At the examination review, the candi- date shall be permitted to record on forms provided by the Department any and all objections to the examination the candidate desires the appropriate Board to review. Such forms shall remain in the custody of the Office of Examination Services for presen- tation to the appropriate Board at the next available Board meeting as an official agenda item. The candidate shall not copy" questions from the test booklet. The candidate may write on a separate paper in the presence of the Office of Examination Services employee, any objection or question he/she has to the written examination. The candidate shall leave the written objections and questions with the Office of Examination Services employee when he/she leaves the review room but she/she shall be permitted to leave with a form listing the question numbers he/she finds to be controversial. In the instance of a written exami- nation, all objections will be presented to the appropriate Board for consideration. Upon completion of the Board's review of written examination items the Department shall notify the reviewing candidate of the Board's decision. If the Board does not concur with the candidate's objections then the candidate will be notified in writing of this and the thirty (30) day appeal time per- iod shall begin to run from the date of this notice. Findings regarding Rule 21- 11.11(13) of the Department of Professional Regulation (later renumbered as Rule 21-11.11(3)(1)j Rule 21-11.11(13) of the Department of Professional Regulation, which was later renumbered as Rule 21-11.11(3)(1), reads as follows: If the consultant finds that the original grade was not rendered in accordance with the grading criteria, then he/she twill regrade that portion, or the entire examination, whichever is appropriate, pursuant to appli- cable statutes and rules. If it is not possible to regrade the examination, the candidate will be allowed to retake the examination at no charge. It is clear from the text of Rule 21-11.11(3)(j) that the language of Rule 21-11.11(3)(1) quoted immediately above is intended to apply only to practical examinations. It does not purport to apply to written examinations. These Petitioners took only written examinations, they have not taken any practical examinations. Findings regarding Rule 21-11.14 of the Department of Professional Regulation Rule 21-11.14 of the Department of Professional Regulation reads as follows, in pertinent part: Unless otherwise provided by a rule of the appropriate board within the Department, Security and Monitoring procedures shall be as follows: (10) Disposition of Test Booklets. Secured processing of Answer Sheets Test booklets for the state devel- oped examinations shall be disposed of and filed in accordance with the following procedure: 1. Ten copies of the examination book- lets shall be retained for ninety (90) days. This procedure shall insure that there are adequate copies of the booklets available for the board to review in their review of preliminary analysis of the examination and review sessions if review responsibilities are retained by the board. After the above defined ninety (90) day period the retention schedule shall change from ten copies to four copies. In the event any irregularity occurs during the examination with any state developed booklet, it shall be the examination supervisor's responsibility to prepare a detailed report of such irregularity and to retain the booklet in question in the secured files for a period of ninety (90) days. Destruction of examination booklets and related materials described in B.2.b., above: When in accordance with procedure, it is appropriate to destroy test booklets, it shall be the Archives's responsibility to schedule such destruction. In all instances there shall be evidenced in writing by the examination supervisor and a witness on a form which shall evidence the date of destruction and the official in charge of such destruction and a witness. When examination booklets are being prepared by the Department of Professional Regulation prior to an examination, the booklets are carefully inspected to make sure that all of the booklets are identical. Following that inspection the booklets are sealed and stored in a secure place in order to insure, among other things, that no changes are made to any of the examination booklets before they are handed out to the candidates. After an examination is given, the Department of Professional Regulation retrieves all of the examination booklets, including all booklets that were used by all of the candidates, and retains them in a secure place until the excess booklets can be destroyed. The examination supervisor selects the booklets which are to be retained from among the booklets that were not handed out to the candidates at the examination. In the normal course of events all of the examination booklets that were actually handled by the candidates at the examination are destroyed within a very few months of the date of the examination. With the exception of the examination booklet of one other candidate (which exception is not relevant to the disposition of this rule challenge proceeding), all of the examination booklets which were handed out to candidates during the examinations taken by these two Petitioners were destroyed approximately 90 days after each of the examinations. When such destruction took place, the Department retained copies of the examination booklets which had not been used by any candidate, which copies were identical to the copies that had been handed out to the candidates during the examination. As part of the examination instructions, all candidates for examination are advised not toe write anything in their examination booklets because all of the booklets used by the candidates will be shredded. They are specifically told to do all of their computations on sheets of work paper that are provided to them at the examination. All candidates are specifically told that the only things they turn in that will be saved are their answer sheets and their sheets of work paper. Findings regarding "unwritten" and "unpublished" rules of the Electrical Contractors' Licensing Board. The findings of fact immediately below relate to the eight "unwritten" and "unpublished" alleged rules of the Electrical Contractors' Licensing Board which are described in subparagraphs (F), (O), (P), (V), (X), (Y), (Z), and (FF) at pages 1 through 5 of the Petition. (The descriptions of these alleged rules are quoted at pages 2 through 6 of this Final Order.) One of these "unpublished" rules is alleged to be a rule to the effect that the Board requires more than minimum competency in order for a candidate to receive state certification and licensure as an electrical contractor. The other seven "unwritten" or "unpublished" rules of the Electrical Contractors' Licensing Board alleged in the Petition are all related in one way or another to the Board's alleged free form actions in the course of its review of the two examinations which have been challenged by these Petitioners in related proceedings under Section 120.57(1), Florida Statutes. None of the evidence regarding these matters proved the existence of an agency statement of general applicability purporting in and of itself to have the direct and consistent effect of law. For reasons which are explained in the Conclusions of Law portion of this Final Order, the evidence is insufficient to establish that the Electrical Contractors' Licensing Board has any "unwritten" or unpublished5? rules such as those described in subparagraphs (F), (O), (P), (V), (X), (Y), (Z), and (FF) of the Petition. 6/ Findings regarding "unwritten" and "unpublished" rules of the Department of Professional Regulation The findings of fact immediately below relate to the six "unwritten" and "unpublished" alleged rules of the Department of Professional Regulation which are described in subparagraphs (G), (J), (1), (L), (Q), and (R) at pages 1 through 5 of the Petition. The descriptions of these alleged rules are quoted at pages 2 through 6 of this Final Order.) These six "unwritten" or "unpublished" alleged rules of the Department of Professional Regulation are all related in one way or another to actions of functionaries of the Department in the course of performing the Department's role in the administration and review of the two examinations which have been challenged by these Petitioners in related proceedings under Section 120.57(1), Florida Statutes. None of the evidence regarding these matters proved the existence of an agency statement of general applicability purporting in and of itself to have the direct and consistent effect of law. For reasons which are explained in the Conclusions of Law portion of this Final Order, the evidence is insufficient to establish that the Department of Professional Regulation has any "unwritten" or "unpublished" rules such as those described in subparagraphs (G),(J), (I), (L), (Q), and (R).7 Findings regarding "unwritten" and "unpublished" rules of both the E1Electrical -Contractors' Licensing Board and the Department of Professional Regulation The findings of fact immediately below relate to the ten "unwritten" and "unpublished" alleged rules of both the Electrical Contractors' Licensing Board and the Department of Professional Regulation which are described in subparagraphs (M), (N), (S), (T), (U), (AA), (BB), (CC), (DD), and (EE) at pages 1 through 5 of the Petition. (The descriptions of these alleged rules are quoted at pages 2 through 6 of this Final Order.) These ten "unwritten" or "unpublished" alleged rules of both the Electrical Contractors' Licensing Board and the Department of Professional Regulation are all related in one way or another to actions allegedly taken by the Board and the Department in the performance of their respective functions related to the administration and review of the two examinations which have been challenged by these Petitioners in related proceedings under Section 120.57(1), Florida Statutes. None of the evidence regarding these matters proved the existence of an agency statement of general applicability purporting in and of itself to have the direct and consistent effect of law. For reasons which are explained in the Conclusions of Law portion of this Final Order, the evidence is insufficient to establish that both the Electrical Contractors' Licensing Board and the Department of Professional Regulation have any "unwritten" or "unpublished" rules such as those described in subparagraphs (M), (N), (S), (T), (U), (AA), (BB), (CC), (DD), and (EE) of the Petition.8

Florida Laws (9) 119.07120.52120.54120.56120.57120.68455.2176.016.03
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MIAN M. SUBHANI vs DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, FLORIDA ENGINEERS MANAGEMENT CORPORATION, 99-002054 (1999)
Division of Administrative Hearings, Florida Filed:Fort Lauderdale, Florida May 05, 1999 Number: 99-002054 Latest Update: Mar. 06, 2000

The Issue Whether Petitioner is entitled to additional credit for his solutions to four problems on the Principles and Practice of Engineering portion of the engineering licensure examination administered on October 30, 1998, by the National Council of Examiners for Engineers and Surveyors.

Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: On October 30, 1998, as part of his effort to obtain a Florida engineering license, Petitioner sat for the Principles and Practice of Engineering Examination (Examination). This is a national examination developed and administered by the National Council of Examiners for Engineers and Surveyors (NCEES). Petitioner chose to be tested in civil engineering. Petitioner received a raw score of 45 on the Examination. For the civil engineering specialization, a raw score of 45 converts to a score of 67. To pass the Examination, a converted score of 70 is needed. Petitioner formally requested (in writing, by letter dated March 26, 1999) that his solutions to Problems 120, 125, and 222 on the Examination be rescored. Petitioner's written request was made to Natalie Lowe of the Board, who forwarded it to the NCEES. Appended to Petitioner's letter to Ms. Lowe were two pages of "scratch paper" on which Petitioner had written during his post-examination review on March 19, 1999. On the first page were written comments he had made regarding the scoring of Problems 120 and 125. On the second page were the following written comments he had made regarding the scoring of Problems 220 and 222: 220 a, b, & c 2 parts b & c correct. Min. mark I should get[:] At least 5 instead of 2 and maybe 7. There is an error. 222 ok The NCEES's rescoring of Petitioner's solutions to Problems 120, 125, and 222 resulted in his receiving a raw score of 43 (or a converted score of 65, 5 points less than he needed to pass the Examination). The Board received the NCEES's rescoring results on May 12, 1999. The Board subsequently referred the matter to the Division to conduct an administrative hearing. At the administrative hearing that was held pursuant to the Board's referral, Petitioner challenged the grading of his solutions to Problems 120, 125, and 220 of the Examination, and indicated that he had "no dispute concerning the grading of [his solution to Problem] 222," notwithstanding that he had requested, in his March 26, 1999, letter to Ms. Lowe, that his solution to Problem 222 be rescored. Petitioner explained that he had made this request as a result of inadvertence and that he had actually intended to seek rescoring of his solution to Problem 220, not Problem 222. Problems 120, 125, and 222 were worth ten raw points each. Problem 120 contained four subparts (or requirements). Petitioner initially received four raw points for his solution to Problem 120. Rescoring did not result in any change to this score. Petitioner solved two subparts of Problem 120 correctly (subparts (a) and (b)). The solutions to the other two subparts of Problem 120 (subparts (c) and (d)), however, were incorrect inasmuch as Petitioner had neglected, in making the lateral force calculations and drawing the diagrams required by these subparts, to include the force attributable to the movement of the groundwater referred to in the problem. Therefore, in accordance with the requirements and guidelines of the NCEES scoring plan for this problem, the highest raw score that he could have received for his solution to this problem was a four, which is the score he received. Problem 125 contained three subparts (or requirements). Petitioner initially received a raw score of two for his solution to Problem 125. Upon rescoring, no change was made this raw score. Petitioner correctly solved only one of the three subparts of Problem 125 (subpart (c)). In his solution to subpart (a) of Problem 125, Petitioner did not provide, as required by this subpart, the quantities of water, cement, and aggregate necessary for the project described in the problem. Petitioner's solution to subpart (b) did not describe one of the acceptable slump increasing methods that the candidates were required describe in their solution to this subpart. Accordingly, giving Petitioner a raw score of two for his solution to Problem 125 was consistent with the requirements and guidelines of the NCEES scoring plan for this problem. Petitioner received a raw score of two for his solution to Problem 220. He did not request, in his March 26, 1999, letter to Ms. Lowe, a rescoring of his solution to this problem, and, as a result, his solution was not rescored. At the administrative hearing, Petitioner testified on his own behalf regarding the scoring of this solution and, during his testimony, contended that the score he received was too low; however, neither a copy of the problem, nor a copy of the NCEES scoring plan for this problem, was offered into evidence. Accordingly, the record is insufficient to support a finding that the score Petitioner received for his solution to Problem 220 was undeservedly low in light of the NCEES scoring plan for this problem. Petitioner initially received a raw score of eight for his solution to Problem 220. Rescoring resulted in this score being reduced two points to a six. Petitioner did not present any evidence supporting the position (which he advances in his Proposed Recommended Order) that he should have received a higher score for his solution to this problem, and, consequently, Respondent's expert, in his testimony at hearing, did not address the matter. While there were exhibits offered (by Respondent) and received into evidence relating to the scoring of Petitioner's solution to Problem 222, it is not apparent from a review of these exhibits that such scoring deviated from the requirements of the NCEES scoring plan for this problem (which was received into evidence as part of Respondent's Exhibit 12).

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered rejecting Petitioner's challenge to the failing score he received from the NCEES on the Principles and Practice of Engineering portion of the October 30, 1998, engineering licensure examination. DONE AND ENTERED this 20th day of December, 1999, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 1999.

Florida Laws (5) 120.57455.217471.013471.015471.038 Florida Administrative Code (6) 61-11.01061-11.01261-11.01561-11.01761G15-21.00161G15-21.004
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