STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID REITER, )

)

Petitioner, )

)

vs. ) CASE NO. 85-2977

) DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF )

ENGINEERING, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on September 6, 1985 in Tallahassee, Florida by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Kennan G. Dandar, Esquire

300 North Franklin Street Tampa, Florida 33602

For Respondent: Reynolds Sampson, Esquire

130 North Monroe Street Tallahassee, Florida 32301

ISSUES

This case arose from David Reiter's request for hearing on his failure to pass the Board's examination. Specifically, David Reiter takes issue with question number 74 on the examination. The parties are in general agreement concerning the facts which are clear. If Reiter obtains credit for question number 74 he will pass the examination. The issue is whether Question 74 is arbitrary and capricious.

The parties have submitted posthearing Proposed Findings of. Fact. A ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner, David Reiter, did take the Part I of the Engineer in Training Examination in October 1984 in order to become licensed by the State of Florida as a professional engineer._

   
   

2. If the Petitioner receives credit for Question 74 he will pass the examination. (Stipulated fact.)

   
   

3. Question number 74 from the National Council of Engineering Examiners test on the Fundamentals of Engineering reads as follows:

   
   

   The Reynolds number is made up of:

   
   

   1. velocity, length, and kinematic viscosity

      
      

   2. velocity, length, and density

      
      

   3. velocity, density, and absolute viscosity

      
      

   4. kinematic viscosity, specific heat, and thermal conductivity

      
      

   5. absolute viscosity, density, and specific heat.

      
      

4. The parties have stipulated that the keyed choice1 is (A). Petitioner selected (C).

   
   

5. Of 14,998 examinees, 49% answered choice (A), 36% answered choice (C). (Boyles' deposition, page 10)2

   
   

6. Choice (A) contains the term "length." The term "length" is not a term of art in engineering and generally refers to the longitudinal dimension of an object. Choice (A) is not absolutely correct because it contains only two of three elements necessary to compute Reynolds number. When the modifiers "characteristic" or "relative" are added to length, a term descriptive of the area of an opening is created which is related to Reynolds number. (Respondent's Exhibit 1 uses the term "relative length." Respondent's Exhibits 2 and 3 use the

   term "characteristic length." Only Respondent's Exhibit 4 uses "length" alone as an element for computing Reynolds number.

   
   

7. Choice (C) contains three of four elements needed to compute the Reynolds number. Without the fourth element, choice

   (C) is not absolutely correct.

   
   

8. The examinees were instructed to select the "most correct answer."

   
   

   CONCLUSIONS OF LAW:

   
   

9. The Board has authority to license professional engineers pursuant to Chapter 471, Florida Statutes. The Petitioner asked for a hearing pursuant to Section 120.57, Florida Statutes. This Recommended Order is entered pursuant to Chapter 471 and Section_120.57, Florida Statutes.

   
   

10. The burden clearly rests with Petitioner to show by a preponderance of the evidence that his examination was not graded properly. Balino v. Department of Health and Rehabilitative Services, 348 So. 2nd 349 (Fla. 1st DCA 1977).

    
    

11. Petitioner must show that the examination or its grading was-arbitrary and capricious. See State ex el. Glasser v. Pepper,_ 158 So. 2nd 383 (Fla. 1st DCA 1963).

    
    

12. For purposes of assessing Question 74, it would be arbitrary and capricious if either choice (A) or choice (C) could be deemed the only correct answer by the Board with no objective criteria for the selection.

    
    

13. The facts show that "length" alone can be said to be a wrong answer. Most sources use the term "characteristic" or "relative"3 length as an element of the Reynolds number. Therefore, the Board could have rejected choice (A) as a correct choice because "length" alone is not a recognized element

    
    

14. The facts also show that choice (C) contained three of four correct elements. The Board argued choice (C) did not contain all the correct elements and choice (A) was the most correct answer. However, because of the use of "length" instead of relative or characteristic length in choice (A), it can also be deemed "wrong" and choice (C) deemed correct because none of its included terms was wrong. In sum, neither choice is clearly correct and the instructions were to pick the "most correct answer."

    
    

15. This is the essence of the term "arbitrary and capricious." There is no means of assessing objectively the correctness of the Board's choice of correct answer. Both choice (A) and (C) are partially incorrect; therefore, the "most" correct answer can be based upon the Board's whim.

    
    

16. Contrary to the Board's arguments, this issue does not require special expertise and whether choice (A) or choice (C) is deemed correct is not (one hopes) a policy consideration. Further, this is one area where the argument about reasonable men differing does not apply. If a question and answer combination is one about which reasonable men can differ and the Board lacks an objective basis for its choice, it is arbitrary and capricious.

RECOMMENDATION

Having determined that Question 74 and its answers were arbitrary and capricious, it is recommended that the Petitioner be given credit for his answer and passage of the examination.

DONE AND ORDERED this 6th day of December 1985 in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway.

Tallahassee, FL 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of December 1985.

ENDNOTES

1/ The choice deemed correct by the Board.

2/ Regarding Respondent's proposed findings, paragraphs 4, 5, 6, 7, 8, 9 and 10 are supported by testimony; however, the statistical validity of the question is not at issue and the question can be statistically significant and, at the same time, be arbitrary and capricious. Said findings are irrelevant.

3/ "Characteristic" or "relative" length would refer to the area of the cross section of a duct, for example, as approved to the duct's length.

4/ In fact, choice (C) is 75% correct while choice (A) is only 66.6% correct.

APPENDIX

The proposed findings of fact of the parties were read and considered with the following results:

Petitioner's Respondent's Recommended Order Findings of Findings of

Fact Fact

(Paragraph 8 is subordinate)

Paragraphs 4, 5, 6 Rejected-irrelevant.

7, 8, 9, 10

Paragraph 11 Rejected-assumes "length" to be

adequate term.

Paragraph 12 Irrelevant.

Paragraphs 9, 17 Paragraph 13 Paragraph 8

(Paragraph 9 rejected as unsupported by record)

Paragraph 14 Subordinate to findings in Paragraph 6.

Paragraph 10 Paragraph 8

Paragraph 11* Subordinate to

Paragraphs 6 and 7.

Paragraph 12 Paragraph 6-

subordinate.

Paragraph 13 Paragraph 6-

subordinate.

Paragraphs 14, 15 Paragraph 6- subordinate.

*Petitioner's Proposed Findings of Fact after number 10 are misnumbered. The number used in this Appendix is the actual

number of occurence in the pleading and not the number as mis- typed.

COPIES FURNISHED:

Allen R. Smith, Jr. Executive Director Department of Professional

Regulation

Board of Engineering

130 North Monroe Street Tallahassee, FL 32301

Mr. Fred Roche Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, FL 32301

Mr. Salvatore A. Carpino General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, FL 32301

H. Reynolds Sampson, Esq. Deputy General Counsel Department of Professional

Regulation

130 North Monroe Street Tallahassee, FL 32301

Kennan G. Dandar, Esq.

300 North Franklin Street Tampa, FL 33602

================================================================

=

AGENCY FINAL ORDER

================================================================

=

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION

BOARD OF PROFESSIONAL ENGINEERS

DAVID REITER,

Petitioner,

vs. DOPE CASE NO. 86-01

DOAH CASE NO. 85-2977

DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF PROFESSIONAL ENGINEERS,

Respondent.

/

FINAL ORDER

THIS CAUSE came on to be heard before the Florida Board of Professional Engineers at a regularly scheduled meeting held in Clearwater Florida on February 14, 1986. The issue at hand was the determination on the part of the Board as to whether or not to accept in whole or in part a Recommended Order from Hearing Officer Stephen F. Dean, entered December 6, 1985. Exceptions to the Recommended Order have been filed by Respondent and written responses to said exceptions have been filed by the attorney for Petitioner. The Board of Professional Engineers reviewed the entire record including the transcript exhibits and pleadings filed in this cause, prior to making its determination contained in this final order.

It was initially noted that Exception #4 to the findings of fact as filed by the Respondent was stipulated as an appropriate Exception to the Hearing Officer's Recommended Order. Exception #4 related to the issue, found at footnote 2 on page two of the

Hearing Officer's Recommended Order, as to whether or not proposed findings 4 through 10 of Respondent's proposed Recommended Order should have been adopted as part of the findings of act of the Hearing Officer. The Hearing Officer rejected said proposed findings (relating to the statistical validity of the question at issue) as irrelevant. The Respondent argued, and Petitioner agreed, that while the proposed findings relating to the statistical validity of any question at issue on an examination challenge is not dispositive of the issue as to whether or not the question and the appropriate answer are arbitrary and capricious, such evidence is clearly relevant and probative. In a normal case, a determination on the part of the Board that evidence which was rejected by the Hearing Officer as irrelevant (and thus not considered by him), was inappropriately: excluded would require a remand to the Hearing Officer to consider such additional evidence, see Cohn v: Department of Professional Regulation, 10 FLW 2390, however, both Petitioner and Respondent agreed to permit Respondent's proposed findings of fact 4 through 10 to be considered as appropriate findings of fact in this case and to append said findings of fact to the Hearing Officer's Recommended Order. As such, therefore, pursuant to the stipulation, the Board considered paragraphs 4 t'r.rousn 10 as being included in the findings of fact of the Recommended Order of the Hearing Officer and as being within the Board's purview in reviewing the recommendation of the Hearing Officer.

After a review of the complete record, including the exhibits, the Board rejects the proposed finding of fact of the Hearing Officer, contained in paragraph 6 of his Recommended Officer at page 2, which states that choice (A) to the question at issue is not absolutely correct because it contains only 2 of

3 elements necessary to compute the Reynolds number. As the Hearing Officer appropriately noted in paragraph 8 of his findings of fact, the examinees were instructed to select "the most correct answer". The evidence adduced by the expert witnesses produced by all parties, clearly shows that the three elements contained in choice (A) to the question at issue are in fact the 3 elements necessary to produce the "Reynolds number". While the Board acknowledges that the terms used in choice (A) are generic terms and do not include various descriptive terms which would have made the three elements contained in choice (A) identical to the terms which are used in some or the authoritative engineering textbooks in describing the components of the Reynolds number, it is clear that from a generic standpoint, the three items contained in choice (A) are in fact the three items which, when placed in the appropriate formula,

will obtain the Reynolds number. Thus, the Hearing Officer's determination that choice (A) is not absolutely correct because it contains only 2 of 3 elements necessary to compute the Reynolds number is in error, insofar as all 3 elements (albeit perhaps not in the most complete form) are in fact contained within the answer. As a result the Hearing Officer's subsequent finding in paragraph 7 of his findings of fact, and in his conclusions of law, that choice (C) is equivalent to choice (A) is in error. The evidence clearly shows, as was found by the Hearing Officer, that choice (C) completely omits 1 of 4 elements needed to compute the Reynolds number under a different but equivalent formula. As such therefore, choice (C) can not be compared with or found to be equivalent to choice (A), in so far as when a candidate is directed to choose the most correct answer, and the candidate is placed in a position of choosing between one answer which contains all three elements and a choice which omits a material element of the formula, it is obvious that under the standard imposed on the examinees to select the most correct answer, that the initial choice (choice

(A) here) is clearly superior to the second choice (choice (C)).

The Hearing Officer quite appropriately stated that in order for Petitioner to meet his burden of proof, it .was necessary for him to show that either the examination or the grading was arbitrary and capricious. The exam or the grading would be considered as arbitrary and capricious if either one of two choices could be deemed correct with no objective basis for differentiating between the selections. Subsequent to these appropriate statements, however, the Hearing officer then apparently misapplied the law to the facts as found in the testimony and the exhibits.1 As was noted above, choice (A) contains all three elements necessary to compute the Reynolds number. Choice (C), however, which the Hearing Officer concluded was equivalent to choice (A), fails to contain one vital element necessary to compute the Reynolds number and does not in any way, shape or form contain language which could be construed as covering that missing element. Therefore, since, as the Hearing Officer stated, it is necessary for the testing agency to articulate a basis for determining between what it considers to be the correct answer from what is alleged by Petitioner to be the correct, it is obvious that that burden has been met by Respondent. By determining that the failure to contain descriptive language in choice (A) results in the term "length" (the Hearing Officer could just as well have used the term "velocity") being considered as an incorrect term the Hearing Officer then found that choice (A) contains only 2 of 3 elements as opposed to choice (C) which contains 3 of 4

elements. In. making this comparison, the Hearing Officer is clearly committing errors was noted above, and is simply not in dispute, the 3 variables contained in choice (A) when placed in the appropriate formula, will describe the Reynolds number (see Respondent's Exhibit 4). The 3 items listed in choice (C), however, (whether an additional descriptive language is added or not) do not describe the Reynolds number, since a vital fourth element is not even mentioned. As such, therefore, there is clearly objective criteria for determining that choice (A) is a more appropriate answer than choice (C) and under the cases cited by both the Hearing Officer, Respondent and Petitioner, See Glasser v. Pepper 158 So. 2nd 349 (1st DCA 1963) and TODD v. Board of Electrical Examiners 191 So. 2nd 533 (1st DCA 1955) Petitioner has failed to carry his burden.

Based upon the foregoing, it is hereby determined that the Exceptions filed by Respondent in this cause are well taken, that the Hearing Officer has misinterpreted the testimony placed before him, relating to whether or not Choice A or choice (C) of the question in issue is the most correct answer, and that as a result, came to an erroneous legal conclusion that both answers were equivalent, and that the question was therefore arbitrary and capricious. As is been noted above, there is a rational basis for differentiating between choice (A) and choice (C), and that choice (A) contains more elements which are correct than choice (C), resulting in its being the appropriate answer to the question. This conclusion is buttressed by the statistical validity of the item in question, as noted by the deposition of Dr. Boyles and the evidence adduced therein, which proved that the question reacted appropriately based on the skills and abilities of those individuals taking the examination.

WHEREFORE, it is hereby Ordered and Adjudged that the Recommendation of the Hearing Officer that Petitioner be deemed to have passed the examination in question is inappropriate, based on the facts and the appropriate legal standards, and thus, the petition to invalidate Petitioner's score on the 1985 Fundamentals of Engineering examination be the same is hereby DISMISSED.

DONE AND ORDERED this 10th day of March, 1986.

Edward A. Lobnitz, Chairman Board of Professional Engineers

ENDNOTE

1/ It should be noted that, as the Hearing Officer himself acknowledges, Respondent's Exhibit 4 uses the exact language contained in choice (A) as those items necessary to compute the Reynolds number. While other authoritative literature may include descriptive words as appendages to the 3 items contained in choice (A), it is noteworthy that the root words of each of the 3 variables in choice (A), in all of the authoritative sources supplied by the [parties, are identical to those contained in choice (A). This is in sharp contrast to the fact that in all of the authoritative sources submitted by the parties, choice (C) omits a variable which is required to compute the Reynolds number. Thus, footnote 4 of the Hearing Officer's Recommended Order at page 4, which purports to show that choice (C) is 75% correct whereas choice (A) is only 66.8% correct is an attempt to compare apples and oranges. Choice (A) contains all three elements, however, choice (C) misses a complete item.

Copies furnished to:

H. Reynolds Sampson, Assistant General Counsel Kennan George Dandar, Esquire

David Reiter

Docket for Case No: 85-002977

Orders for Case No: 85-002977