STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARING

CRISTOFOR FOCSAN, )

)

Petitioner, )

)

vs. ) CASE NO. 94-0149

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

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Tampa, Florida on May 18, 1994, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Cristofor Focsan, pro se

6150 36th Terrace North

St. Petersburg, Florida 33710

For Respondent: William M. Woodyard, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

STATEMENT OF THE ISSUES

The issue for consideration is whether Petitioner should be given additional credit for his answers to the April, 1993 Structural I Engineer Examination.

PRELIMINARY MATTERS

By Examination Grade Report dated July 23, 1993, the then Department of Professional Regulation's Bureau of Testing advised Petitioner that he had earned a score of 68 on the Fundamentals part of the aforementioned examination. Since a passing grade was 70, he failed the examination. Thereafter, Petitioner requested and was granted a review of his examination which did not result in a favorable change to his score and, by letter of December 22, 1993, he requested a formal hearing. This hearing followed.

At the hearing, Petitioner testified in his own behalf and introduced Petitioner's Exhibits A - D. Respondent presented the testimony of Joseph Arnett, a consulting professional engineer and an expert in the field of

professional engineering, and Dr. Joseph A. Klock, a psychometrician and an expert in the field of testing and psychometric measurements. Respondent also introduced Respondent's Exhibit 1.

A transcript was provided, and subsequent to the hearing, Respondent's counsel submitted proposed Findings of Fact which have been accepted and are incorporated in this Recommended Order. Petitioner did not submit Proposed Findings of Fact.

Prior to the taking of testimony, the parties stipulated to the fact that the Department's answers to questions 11, 17, 26, 69, 70, 73, and 84, in the morning session, and questions 2 and 12 in the afternoon session were the correct answers to the problems on the examination related thereto, and it was so found. Therefore, no evidence was presented as to those answers at hearing.

FINDINGS OF FACT

1. On April 15 and 16, 1993, the then Department of Professional Regulation's Bureau of Testing administered an examination for Structural I Engineer, as a part of the examination for licensure as a Professional Engineer. The fundamentals portion thereof was administered in two sessions. The first consisted of 140 questions and was administered in the morning session. The second consisted of 70 questions and was administered in the afternoon session of the same day. Of the 140 morning questions, 35 were pretest questions being "tried out" for fairness and which were not scored as a part of the examination. In the afternoon session, there were 18 questions in that category.

   
   

2. The examination is not scored on a true arithmetic basis. Proportion scoring is utilized. All questions are not of equal difficulty. The test is equated so that the difficulty of the examination does not change from test to test. The pretest questions are included to provide for that. Petitioner's score of 68 was a scaled score. He actually answered correctly 93 of the 210 questions. In the morning session, he answered 47 questions correctly and in the afternoon session, answered 46 questions correctly.

   
   

3. In his written request for formal hearing, and again at hearing, Petitioner outlined his objections to the examination process and to certain questions posed therein. Initially, he asserted that the examinee is provided with only vague information prior to the test. He also complains about the review process for which he claims he was totally unprepared because of the paucity of the information provided by the Department. When the Department, by letter dated August 6, 1993, first notified Petitioner of his review appointment, it enclosed therewith a sheet of "guidelines governing examination reviews" which outlined the ground rules for the review process. The day of the review, or just shortly before it, he was also furnished with a set of "review instructions" which outlined the procedure to be followed and the parameters of the review process. Petitioner complains this was totally inadequate and has a "tremendous negative impact" on the examinee, but he gives no specifics and admits he was not denied the opportunity to challenge any questions or to present his position fully. Consequently, it is hard to see where Petitioner was prejudiced by the review process.

   
   

4. Of the 10 questions which Petitioner initially challenged, prior to the presentation of any evidence, he agreed that the Department's answer to all but one was correct. However, at hearing, Petitioner challenged questions 17-AM,

   79-AM, and 11-AM.

5. With regard to Question 17-AM, Petitioner's answer was "e" - "it may either increase or decrease with time depending on the system." He claims that example 21.1, shown in Lindberg's reference book at page 21-7 is applicable in that it "concludes that a local or isolated system can experience both an increase and a decrease in entrophy", and, therefore, his answer is also correct. Mr. Arnett, on the other hand, concludes that nowhere in Lindberg's reference material is the term "isolated system" used. The correct reference is to thermodynamics and an isolated system which is what the testers were looking for. The examination question and the Lindberg example use entirely different systems. Consequently, the correct answer is "a" - "either remains constant or increases with time", and Petitioner's answer is wrong. His answer would be correct under the planet system, but that is the wrong system to use in this situation. It is so found.

   
   

6. As to question 79-AM, the correct answer, according to Mr. Arnett, is "d", "30 million", whereas Petitioner's answer was "e", "45 million." In Mr. Arnett's opinion, the question has enough information presented to allow the candidate to work it without reference to any outside manual. The question deals with Young's modulus - the relationship of unit stress to unit strain. The candidate is required to take readings in the area in proportion, figure unit stress and strain, and using proportionality, arrive at the correct answer of 30 million. The question shows consistency to a certain level where it changes. This shows that at that point, the limit is reached. The question does not relate solely to steel, and this is not relevant to the problem.

   
   

7. Mr. Arnett believes Petitioner did not understand that it was not important to know the identity of the material being used. Petitioner claimed that this is an incomplete text. According to Arnett, nowhere is it shown the question relates to steel, and any further reference to steel is irrelevant. Steel was not a part of the problem. According to Mr. Arnett, the question is logical and neither arbitrary nor capricious. It is a fair question and one that a candidate for minimal competency should be able to answer. It is so found.

   
   

8. With regard to question 11 - AM, Petitioner claims it is deficient in that the diagram utilized in the examination booklet did not specifically denote by name the location of the pin involved therein. In support of his position, he introduced extracts from sample questions furnished by the National Council of Examiners for Engineering and Surveying, (NCEES), which all utilize the term "pin" in each location where such an instrument is used. Petitioner claims the failure to so denote on this examination renders the question faulty in that it does not provide enough information upon which to base an answer.

   
   

9. When Mr. Arnett looked at the question for the first time, he immediately looked to see the type of joint and saw the dot in the semicircle appearing thereon. This is a commonly used method of identifying a pin connection in the engineering profession, and, in his opinion, there is sufficient information to allow the candidate to answer the question. This question, as written, was certified as proper by NCEES, whose sample booklet, utilized for preparation purposed, labels pins. It is found, therefore, that even without the label "pin" at the joint, there was sufficient information for a qualified, properly trained engineer to answer the question properly.

   
   

10. Petitioner also asserted that the examination process was too long, and he objected to the inclusion of the pretest questions. He claims that in an endurance test, as here, an age factor is in play. The pretest questions are not identified as such on the examination and as a result, the examinee must

    endeavor to answer all the questions because he does not know which questions will count and which won't. To rectify this "unfair" situation, Petitioner claims one point should be added to his score for each session in which pretest questions are used.

    
    

11. According to both Mr. Arnett and Dr. Klock, the psychometrician, all candidates are advised in advance of the length of the test and of their right to seek any necessary accommodation under the terms of the Americans with Disabilities Act. Petitioner claims he sought an accommodation twice, but failed to present independent evidence of either the existence or nature of his disability. There is no record on file with the Department that Petitioner ever sought an accommodation. All candidates were afforded the same amount of time to take the test and there was no indication that any candidate did not have enough time to complete it. Petitioner's claim is, therefore, without merit.

    
    

12. Mr. Focsan also asserts that the scoring system is age biased in the fundamentals area of the test which covers basics taken in university courses and which is usually taken just after graduation when this information is fresh in the mind of the candidate. He asserts the fundamentals examination can be waived in some states for individuals who have extensive experience in engineering. He has 35 years of experience, having been licensed and worked as an engineer in Romania for 27 years before coming to the United States. He is not licensed as an engineer anywhere in this country. He claims the physical demands of the test play a part and older candidates are not in as good a shape as the younger ones. As a result, he states, the test is harder for older candidates. No independent evidence was presented by Petitioner to support this or his contention on age bias and his testimony is insufficient, standing alone, to support a finding to that effect.

    
    

13. Petitioner claimed, in addition, that the reference materials allowed to be brought into the examination sessions, (this was an open-book exam), had some misleading or erroneous information in them. Although these errors were, he contends, obvious, and an errata sheet was prepared for examinees taking the April, 1994 examination, none of this was taken into consideration is grading the April, 1993 examination. No errata was available for the test he sat for, and he also contends the time given was too short.

    
    

14. Neither Mr. Arnett nor Dr. Klock found any fault with the use of the reference materials procedure in place for the test taken by Petitioner. The examination instructions given each candidate prior to the examination advised that reference materials could be used during the examination, no specific reference was prescribed. Instead, the restrictive language related to the type of material which could not be utilized. Any commonly accepted source other than those prohibited was allowed. Included in the permitted material was the Lindberg manual referred to by Petitioner. It is important to note that reference materials were permitted, not required. In that regard, as of the 1994 examination, no reference material other than that supplied by the National Council is now allowed in the examination room. This change was made to protect against the unlawful removal of examination materials from the examination room concealed in candidates' reference materials. In any case, Mr. Arnett notes there is nothing in the errata material referred to in Petitioner's Exhibit C, which would change any of Petitioner's answers or any correct answer on the 1993 examination, and there is sufficient information in each question to allow the candidate to reach the correct answer. It is so found.

    
    

15. Petitioner also objected to the requirement imposed on examinees to use a number 2 pencil instead of a pen, claiming this allowed unauthorized

    changes to the examinees' answers. Petitioner had no evidence at all to indicate such misconduct had occurred regarding his or that of any other examinee and it is found that such allegations is without merit or foundation.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

17. Examinations for licensure as a professional engineer are, by mandate, found in Section 471.011(2), Florida Statutes, prepared by and purchased from NCEES or a similar national organization. Since no other similar national organization currently exists to provide the examination, the examination used in Florida must be purchased from NCEES.

    
    

18. To succeed in his challenge to the examination, Petitioner must establish, by a preponderance of the evidence, that the examination was somehow faulty, was arbitrarily or capriciously worded, that his answers to the challenged questions were arbitrarily or capriciously graded, or that he was arbitrarily or capriciously denied credit through a grading process devoid of logic or reason. State of Florida v. J.M. Pepper, 155 So.2d 383 (Fla. 1st DCA 1963); Harac v. Department of Professional Regulation, 484 So.2d 1333, 1338 (Fla. 3rd DCA 1986); Topp v. Board of Electrical Examiners for Jacksonville Beach, Florida, 101 So.2d 583, (Fla. 1st DCA 1958).

    
    

19. Here, Petitioner argued matters such as the requirement for use of a number 2 pencil and his contention that extra time should have been given to older examinees. The evidence he presented regarding the correctness of his answers to the question under challenge did not meet the required standard, however. He failed to demonstrate that his answer to any of the questions challenged was deserving of more credit or was arbitrarily or capriciously graded. He failed to show that the refusal of the examiner to grant his answers more credit lacked reason or logic, and he failed to show that the examination, or any portion thereof, was faulty.

    
    

20. Taken together, the evidence presented by both sides established that the examination process utilized at this examination was fair; that the questions were clear and reasonably capable of being understood and answered; that Petitioner's answers were fairly and properly graded; and that the determination to deny him further credit was proper and supported by the information in his answers.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is:

RECOMMENDED that a Final Order be entered in this matter denying Petitioner herein, Cristofor Focsan, additional credit for his answers to the April 1993 licensure examination developed by the National Council of Examiners for Engineering and Surveying.

RECOMMENDED this 6th day of July, 1994 in Tallahassee, Florida.

ARNOLD H. POLLOCK

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 6th day of July, 1994.

COPIES FURNISHED

Cristofor Focsan

6150 36th Terrace, North

St. Petersburg, Florida 33710

William M. Woodyard, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Jack McRay

Acting General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Angel Gonzalez Executive Director Board of Professional

Engineers

1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit 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 consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.

Docket for Case No: 94-000149

Orders for Case No: 94-000149