STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RONALD R. CORUM, )

)

Petitioner, )

)

vs. ) CASE NO. 91-3651

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, William R. Cave, held a formal hearing in the above- captioned matter on August 28, 1991 in Tampa, Florida.

APPEARANCES

For Petitioner: David W. Persky, Esquire

Spicola & Larkin 806 Jackson Street

Tampa, Florida 33602

For Respondent: Wellington H. Meffert, II, Esquire

Department of Professional Regulation

1940 N. Monroe Street, Suite 60

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUE

Was Petitioner properly graded and given appropriate credit for question number 124 on the October, 1990, Professional Engineering Licensure Examination (Principles and Practice of Engineering).

PRELIMINARY STATEMENT

During October, 1990, the Petitioner sat for the October, 1990 Florida Professional Engineering Examination. On the initial grading of the examination, Petitioner received a score of two points out of a possible ten points on question 124. By letter dated May 24, 1991, Petitioner requested a formal administrative hearing to contest the scoring of question 124 of the examination. By letter dated June 11, 1991 the matter was forwarded to the Division of Administrative Hearings for the appointment of a Hearing Officer to conduct the hearing. This matter proceeded to hearing on August 28, 1991.

At the hearing, Petitioner testified in his own behalf and presented the testimony of Walter C. Caldwell. Petitioner's exhibits 1 through 6 were

received into evidence. The Respondent presented the testimony of Joseph W. Arnett and Joseph Allen Klock. The depositions of Donald B. Stafford taken on August 23, 1991 and October 9, 1991 were received into evidence by agreement of the parties in lieu of Stafford's testimony at the hearing as Respondent's exhibits 1 and 7 which were filed with the Division of Administrative Hearings on October 25, 1991. Respondent's exhibits 2 through 6 were also received into evidence.

Subsequent to the hearing on August 30, 1991 the Respondent filed a Motion to Abate with the concurrence of the Petitioner and as grounds for the motion advised the undersigned that an agreement had been reached by the parties which would obviate the need for any further action in this proceeding provided the Board of Professional Engineers (Board) accepted the agreement. The motion was granted and provided for the proposed findings of fact and conclusions of law to be filed by October 7, 1991 if the Board rejected the agreement. The Board rejected the agreement at its September 1990 meeting. On September 25, 1990 the Respondent filed a Status Report and Motion to Extend Time for Filing. The motion was granted and the time for filing proposed findings of fact and conclusions of law was extended from October 7, 1991 to October 25, 1991 with the understanding that the time frame for submission of the Recommended Order was waived in accordance with Rule 22I-6.031(2), Florida Administrative Code.

A transcript of this proceeding was filed with the Division of Administrative Hearings on October 18, 1991. The parties timely filed this respective proposed findings of fact and conclusions of law under the extended time frame. A ruling on each proposed finding of fact has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. At all times pertinent to the issue herein, Petitioner, Ronald R. Corum, Examinee Identification No. 200619, was a candidate for licensure by examination as a professional engineer, and the Board of Professional Engineers was and is the state agency in Florida responsible for the licensing of Professional Engineers and the regulation of the practice of professional engineering in the state of Florida.

   
   

2. Petitioner sat for the October 1990, Florida Professional Engineer Licensure Examination (Principles and Practice of Engineering). This part of the examination is divided into a morning session and an afternoon session. The morning session requires the examinee to choose four essay questions from a choice of twelve essay questions and produce a numerical solution to each question. The afternoon session is multiple choice and the examinee has to solve four questions from a choice of twelve questions. Each of the questions, both morning and afternoon, are worth ten points (raw score) for a total maximum raw score of 80 points, with a minimum passing raw score of 48 points. Petitioner received a raw score of 47 points.

   
   

3. Question 124 was one of the essay question selected by Petitioner to solve in morning session of examination. Question 124 consisted three parts, 124A, B and C which required the examinee to:

   
   

   1. compute the area of traverse (in acres) a five-sided polygon;

   2. compute the net area (in acres) in the land parcel after adding sector area AB and excluding sector area DE; and

   3. compute the length of curve DE (in feet).

      
      

4. The problems posed by Question 124 are not uncommon in the day to day practice of professional engineering and are not particularly difficult to solve.

   
   

5. Petitioner attempted to solve Part A by using the method of coordinates which is an acceptable method of determining the area of a traverse. However, the Petitioner made a fundamental error in applying the method, not a simple mathematical error, in that he did not return to the beginning point of the traverse which resulted in an unrealistic answer. The correct answer to Part A was 16.946 acres. The Petitioner calculated the area to be 126.12 acres.

   
   

6. In attempting to solve Part B, the Petitioner misapplied a correct methodology by erroneously expressing the central angle of the area in degrees rather than in radians. A radian is equal to approximately 57 degrees and this resulted in substantial error in Petitioner's calculation. The correct answer was 17.607 acres. Petitioner's answer was 219.63 acres which was not possible in relation to the area the Petitioner had already calculated for the traverse in Part A. This was a very serious error, a fundamental error, not a mathematical error.

   
   

7. The maximum raw score for question 124 was ten points. Petitioner received a raw score of two points. On review, Petitioner was again granted only two points out of ten possible points. The examinee's identity is not known to the scorer during the initial scoring or the review.

   
   

8. Both question 124 and the scoring plan used in grading question 124 were approved by the National Council of Examiners of Engineers and Surveyors (NCEES).

   
   

9. The scoring of question 124 was weighted so that Parts A and B were worth four points each, and Part C was worth two points. Petitioner correctly answered Part C and received two points. The Petitioner did not receive any points for Part A or Part B. The examinee was not aware of this weighting policy at the time of the examination.

   
   

10. The scoring plan for question 124 which was used by the NCEES grader was set up in six (6) categories from 0 - 10 in two-point increments as follows:

    
    

    10 - Exceptionally competent.

    8 - More than minimum competence but less than

    exceptionally competent.

    6 - Minimum competence.

    4 - More than rudimentary knowledge but insufficient to demonstrate competence.

    2 - Rudimentary knowledge.

    0 - Nothing presented to indicate significant knowledge of the problem.

    
    

11. Petitioner's use of acceptable methodologies in attempting to solve the problems of Parts A and B may indicate at least rudimentary knowledge and possibly more than rudimentary knowledge but insufficient knowledge to

    demonstrate competence which would have entitled Petitioner to at least two points on Parts A and B each. However, the unreasonableness and the impossibility of his answers and his failure to recognize the unreasonableness and impossibility of his answers coupled with his fundamental error in solving the problems of Parts A and B were such that the Petitioner did not demonstrate significant knowledge of the problems for Parts A and B. Therefore, any credit that would have been given for using acceptable methodologies in attempting to solve the problems would be negated by this lack of significant knowledge of the problems. Because of this lack of significant knowledge of the problems the scorer correctly adjusted Petitioner's score on Part A and Part B each to zero.

    
    

12. Unreasonable answers result in credit being deleted, and this policy is uniform among all of the states. However, the examinee is not made aware of this policy at the time of the examination.

    
    

13. There was no instruction or guide to indicate to the examinee that if the examinee recognized that any answer was unrealistic that the examinee should so indicate on the answer sheet. Likewise, there was no instruction or guide to indicate that the examinee would be more heavily penalized if the examinee did not indicate on the answer sheet that the answer was unrealistic.

    
    

14. An examinee's inability to recognize an unrealistic answer and to so indicate on the answer sheet without specific instruction goes to the examinee's competence as a professional engineer. Therefore, Petitioner has not been treated unfairly by the lack of instruction or guide advising him to indicate his ability to recognize an unrealistic answer on the answer sheet.

    
    

15. The NCEES scorer for question 124 attempted to award the same score to all examinees of the October 1990 examination who gave similar unrealistic answers to question 124 as did Petitioner without noting on the answer sheet that the answer was unrealistic.

    
    

16. The examinees are not informed of how the scoring plan will be applied in advance of the examination or that the essay question will be scored in two- point increments only. There was no evidence that this information would be of significant benefit to the examinee. In fact, the Petitioner did allocate his time in attempting to solve question 124 similar to the weighting of the scoring plan, spending only a small part of the time on Part C.

    
    

17. Part B should have identified the curved areas to be computed as segments, rather than sectors. Petitioner attempted to solve Part B as though it referred to segments, and did not raise this issue in the request for review. Petitioner's use of degrees rather than radians would have been equally erroneous in determining the area of a sector. There was no evidence to show that identifying the curved area as a sector rather than a segment had any effect on Petitioner's attempt to solve the problem.

    
    

18. The official solution to Part B contained a typographical error made during the transcription of the grader's handwritten solution. This had no effect on the scoring of Part B. The solution cannot affect the answer given by the examinees, as the solution is only available after the examinee has completed the examination and is challenging the scoring.

    
    

19. There is a lack of competent substantial evidence in the record to establish that the scores which Petitioner received on Part A and Part B of question 124 of the October, 1990 Professional Engineering Licensure Examination

    were incorrect, unfair or invalid, or that the examination, and subsequent review, were administered in an arbitrary or capricious manner.

    
    

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes.

    
    

21. Section 471.013, Florida Statutes, authorizes the Respondent to administer examinations to applicants for licensure in professional engineering, and Section 471.015, Florida Statutes, requires successful completion of said examination prior to licensure in the State of Florida. Since this is a case in which Petitioner is seeking to obtain licensure in professional engineering, the Petitioner has the burden of establishing his entitlement to that licensure by a preponderance of the evidence. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Rule 28-6.008(3), Florida Administrative Code. The evidence clearly establishes that the Petitioner has failed to meet this burden.

RECOMMENDATION

Based upon the foregoing, it is RECOMMENDED:

That Respondent enter a Final Order dismissing the Petitioner's challenge to the grading of his response to question 124 on the October 1990 Professional Engineer's Licensure Examination.

DONE and ENTERED this 26th day of November, 1991, in Tallahassee, Florida.

WILLIAM R. CAVE

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 26th day of November, 1991.

APPENDIX TO RECOMMENDED ORDER

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in the case.

Rulings on Proposed Finding of Fact Submitted by the Petitioner

1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is

   the Finding(s) of Fact which adopts the proposed finding of fact: 1 (2); 2 (3); 3 (3); 4 (5); 5 (5); 6 (7); 7 (9); 8 (9); 9 (13); 10 (13); 11 (12); 12 (9); 13

   (5); 14 (6); 15 (9); 16 (11); 17 (7); 18 (1); 20 (16); 21 (16) and 22 (18).

   
   

2. Proposed finding of fact 19 is not supported by substantial competent evidence in the record but see finding of fact 11.

Rulings on Proposed Findings of Fact Submitted by the Respondent

1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which adopts the proposed findings of fact: 1 (2); 2 (3); 3 (4); 4 (5); 5 (6); 6 (6); 7 (7); 8 (8); 9 (9); 10 (12); 11 (11); 12 (15); 13 (9, 16); 14 (17); 15 (18).

COPIES FURNISHED:

Wellington H. Meffert, II, Esquire Department of Professional

Regulation

1940 North Monroe Street, Suite 60

Tallahassee, FL 32399-0792

David W. Persky, Esquire Spicola & Larkin

806 Jackson Street

Tampa, FL 33602

Angel Gonzalez, Executive Director Board of Professional

Engineers

1940 North Monroe Street, Suite 60

Tallahassee, FL 32399-0792

Jack McRay, General Counsel Department of Professional

Regulation

1940 North Monroe Street, Suite 60

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. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN 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: 91-003651

Orders for Case No: 91-003651