STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALAN K. GARMAN, )

)

Petitioner, )

)

vs. ) CASE NO. 90-5728

) DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF ) PROFESSIONAL ENGINEERS, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case pursuant to notice, January 25, 1991, in Brooksville, Florida before Stephen F. Dean, the hearing officer designated by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Alan K. Garman, pro se

Civil-Tech, Inc. 3573 Commercial Way Street B

Spring Hill, Florida 34606

For Respondent: William F. Whitson

Law Clerk

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

STATEMENT OF THE ISSUES

The issues presented are: (1) whether or not Respondent wrongfully eliminated materials from the Candidate/Petitioner during the April 19, 1990 engineering examination, and if so, (2) whether the Candidate/Petitioner received a failing grade because the materials were wrongfully eliminated.

PRELIMINARY STATEMENT

The Respondent, Department of Professional Regulation, called the following witnesses; Ms. Deena Clark, Department of Professional Regulation, Division of Examination and Licensure, the examination supervisor at the Jacksonville location where Petitioner took the examination, and Mr. Joseph Klock, DPR, Bureau of Examination Services, a psychometrician. Mr. Joseph L. Arnell provided notarized testimony as a late exhibit.

Questions as to how this examination was scored and candidates grades computed were left open for Mr. Klock to research and provide the answers (Transcript Pages 63 and 70). This data was provided on 11 and 15 February, 1991.

The Petitioner was allowed to submit as late-filed exhibits, copies of chapters from three text books (labeled Exhibits P-5, P-6 and P-7) (Transcript Page 21). The Respondent was to be provided a copy (Transcript Page 21). The Respondent's qualified representative did not receive a copy of said exhibits.

The Candidate/Petitioner testifying on his own behalf, and called the Respondent's two witnesses.

The Respondent filed proposed findings which were read and considered.

Appendix A states which findings were adopted and which were rejected and why.

FINDINGS OF FACT

1. The Petitioner (#100021) received a score of 69.0 on the Professional Engineer Fundamentals Examination given April 19, 1990. A minimum passing score was 70.0 on the examination which is written by National Council of Engineering Examiners and graded by Education Testing Service. (Transcript Pages 36 and 39)

   
   

2. Prior to the April 1990 examination, the Board sent each candidate a letter, dated December 18, 1989 (Exhibit P-1) (Transcript Page 9 and 12), which said, "No review publications directed principally toward sample questions and their solutions of engineering problems are permitted in the examination room." (Transcript Page 31).

   
   

3. The candidates were also provided with a "Candidate Information Booklet" dated January 1990 (Exhibit R-1, Transcript Page 77). The booklet states on page 14, "No books with contents directed toward sample questions or solutions of engineering problems are permitted in the examination room." (Transcript Pages 77 and 96).

   
   

4. Petitioner, who also took the October 1989 examination had received notice at that examination that the Board of Engineers intended to change the procedure allowing reference materials in the examination. (Transcript Page 89 and Respondent's Exhibit 2.)

   
   

5. The Board of Professional Engineers advised the examination supervisor and proctors that no engineering "review" materials would be allowed in the examination although engineering "reference" materials could be brought into and used for the examination. However the books which were excluded included books without "review" in the title, books with "reference" in the title, and books which contained problems and solutions. Before the examination began Deena Clark, an examination supervisor, read over a loud speaker system names of books that would not be permitted (Transcript Page 81). Practice examination and solution manuals were not allowed for use by engineering candidates (Transcript Pages 93 and 94). Schram's outlines and other materials were also excluded (Transcript Page 91). Also excluded was Lindeburg's 6th edition, "Engineering In Training Review Manual." (Transcript Pages 16 and 79). This decision was verified by the Board before the examination began (Transcript Page 81).

6. After the examination had begun, Ms. Clark announced that the candidates could put certain copyrighted materials in a three-ring binder and use them which had been excluded earlier (Transcript Page 85). This was in response to candidates who needed economics tables for the examination However, no time was provided the candidate to prepare these references and only one minute was added to the examination time. (Transcript Page 85). Petitioner did not bring any economic tables to the examination site except those contained in books which were not allowed in the examination. (Transcript Page 19). Petitioner did not remove the economic tables and permitted references from the Lindeburg's review manual until lunch and these tables were not available to him on the morning examination. (Transcript Pages 22 and 88).

   
   

7. Of the six engineering economics questions on the morning portion for the examination, the candidate correctly answered four. No data was provided on the nature of these questions.

   
   

8. The Candidate correctly answered 53 questions in the morning (weighted x 1) and 23 questions in the afternoon (weighted x 2) for a total of 99 weighted required points. He answered eight questions correctly in the "addition" portion of the examination. The table for eight additional questions correct in the "Scoring Information Booklet" used in determining the candidates final grade shows the adjusted equated score was 126 and his scaled score was 69. (Page 21 of booklet).

   
   

9. The value of each economics question converted to final scoring scale was enough that passage of one economics question would have resulted in passage of the examination.

   
   

10. The exclusion of certain materials from the examination was arbitrary and capricious and was done by a few individuals without any stated objective standard published by the board. Further, the board knew before the examination which books were to be excluded and could have notified examinees of the exact items to be excluded. The Board's generally poor handling of this matter is exemplified in announcing after the examination had begun that items previously excluded could be used if placed in a ring binder but not allowing any time to prepare such materials. (Tx. pgs., 74-80, 84-86, and 91-97)

    
    

11. The Petitioner would have used several tables which were excluded if the announcement had been made before the morning examination began with time to put the items in acceptable form.

    
    

12. After notifications in October 1989, December 1989, and January 1990, Petition admitted that he did not call the Board of Professional Engineers to ask for guidance on books that would not be allowed on the April 1990 examination (Transcript Page 29). However, a final decision on books to be excluded was not made until approximately two weeks before the examination.

    
    

13. The Petitioner did not show that the two questions which he missed on the Engineering Economics portion of the morning examination were missed for lack of the tables.

    
    

14. The examination is a national examination and there is no evidence that the requirements and limits established by the Board in Florida were applicable nationwide. To alter the national instructions locally potentially adversely affects Florida results.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings (DOAH) has jurisdiction over the parties and subject matter pursuant to Section 120.57(1), Florida Statutes. Section 471.013, Florida Statutes, addresses the engineering licensure examination. Section 455.217, Florida Statutes, and Chapter 21-11, Florida Administrative Code, address licensure examinations administered by DPR.

    
    

16. Respondent requested that the late-filed exhibits not be admitted because Petitioner did not forward Respondent copies of the exhibits. The request is denied because (1) the Petitioner is a lay person and not well versed in procedure, and (2) the Respondent was aware of these exhibits and could have copied them from the Division of Administrative Hearings file.

    
    

17. Section 21-11.013(3), [former 21-11.13], Florida Administrative Code, says, "If through some mechanical fault of the Department, . . . or other problems occur which are due to the Department's inaction or negligence, the Department shall permit re-examination in these areas at the next regularly scheduled examination. In Alvarez v. DPR, Acupuncture, 458 So.2d 808 (Fla. 1st DCA 1984), the appellants/candidates contended that they were given insufficient notice and misleading instructions as to what was required on the acupuncture exam. The court held for appellants and based on Section 21.11.13(1), Florida Administrative Code, awarded them a retake of the examination at no charge. Id at 811.

    
    

18. The Candidate had the burden to prove by a preponderance of the evidence that his examination was not administered in accordance with applicable statutes or rules. Florida Department of Transportation v. J. W. C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981).

    
    

19. Evidence presented showed that Petitioner, notwithstanding the nonavailability of the economics tables in the morning, correctly answered four of the six economics questions. He did not demonstrate that the questions he missed were missed for want of the tables.

    
    

20. The Candidate failed to prove that being prohibited from using a book with included interest tables during the exam caused him to receive a failing grade. The Candidate did not prove that the arbitrary and capricious exclusion of certain materials without adequate notice caused his failing grade. The Candidate presented credible evidence of several serious problems with the examination procedure. He did not formally challenge the other aspects of the scoring. 1/ He did show that he should have the opportunity to sit for another examination at no charge.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Petitioner be permitted to take the examination without charge on one occasion.

RECOMMENDED this 27th day of March, 1991, in Tallahassee, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1991.

1/ The general information provided to examinees by the State Board regarding the values of questions on the examination and scoring it misleading or inaccurate because neither the weighted required score nor the adjusted score was 48% of 80, 280, or any other number related to the scaled score of 70. The manner in which these values are associated with the scale score of 70 is contrary to the Board's explanation and is not self evident. This is a potential problem if the matter were formally challenged, and it appears the Board needs to reassess its procedures and instructions.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-5728

The Petitioner did not submit proposed findings. The Respondent submitted proposed findings which were read and considered. The following proposed findings were adopted or reject for the reasons stated:

1. Adopted.

2. Issue not fact.

3. - 4. Rejected. Preliminary statement not fact.

5. -12. Adopted.

1. Rejected. Preliminary statement not fact.

2. Rejected as irrelevant.

3. Rejected as preliminary statement.

4. Adopted.

5. Adopted.

COPIES FURNISHED:

Alan K. Garman Civil-Tech, Inc. 3573 Commercial Way Street B

Spring Hill, FL 34606

William F. Whitson, Law Clerk Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

Rex Smith Executive Director

Board of Professional Engineers

Department of Professional Regulation

1940 North Monroe Street Tallahassee, FL 32399-0792

Jack McRay, General Counsel Department of Professional

Regulation

1940 North Monroe Street Tallahassee, FL 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Docket for Case No: 90-005728

Orders for Case No: 90-005728