STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JANE A. CALDERA, )

)

Petitioner, )

)

vs. ) CASE NO. 94-2963

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, ) BOARD OF PROFESSIONAL ENGINEERS, )

)

Respondent. )

)

RECOMMENDED ORDER

On August 11, 1994, a formal administrative hearing was held in this case in Tampa, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jane A. Caldera, pro se

5414 Deerbrooke Circle

Tampa, Florida 33624

For Respondent: Wellington H. Meffert, II, Esquire

Assistant General Counsel Department of Business and

Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUE

The issue in this case is whether the Department should give the Petitioner a passing grade on the October, 1993, Principles and Practices of Civil/Sanitary Engineering Examination.

PRELIMINARY STATEMENT

The Petitioner took the October, 1993, Principles and Practices of Civil/Sanitary Engineering Examination and received a failing grade. On May 12, 1994, the Petitioner requested a formal administrative proceeding to challenge the examination. On May 27,

1994, the matter was referred to the Division of Administrative Hearings (DOAH) for formal administrative proceedings and was given DOAH Case Number 94-2963. On June 17, 1994, a Notice of Hearing was issued scheduling the case for final hearing on August 9, 1994. Later, an Amended Notice of Hearing was issued rescheduling the final hearing for August 11, 1994.

At the final hearing, the Petitioner called an expert witness and testified in her own behalf. The Respondent called two expert witnesses. The Petitioner had Petitioner's Exhibits 1 through 7 admitted in evidence. The Department had Respondent's Exhibits 1 through 9 admitted in evidence.

At the end of the hearing, the Department ordered the preparation of a transcript of the hearing, and the parties were given ten days from the filing of the transcript in which to file proposed recommended orders. The transcript was filed on August 24, 1994, and the Department timely filed a proposed recommended order. The Petitioner asked for and, without objection, was granted permission to late-file her proposed recommended order.

Explicit rulings on the proposed findings of fact contained in the parties' proposed recommended orders may be found in the Appendix to Recommended Order, Case No. 94-2963.

FINDINGS OF FACT

1. The Petitioner, Jane A. Caldera, took the October, 1993, Principles and Practices of Civil/Sanitary Engineering Examination and received a failing grade. Her grade was 67.20; passing was 70. In terms of raw scores, 48 was passing, and the Petitioner scored

   45 points.

   
   

2. During the morning session of the exam, candidates were allowed to answer any four of twelve "essay" questions. During the afternoon session, candidates were allowed to answer any four of twelve multiple-choice questions.

   
   

3. One of the "essay" questions the Petitioner chose to answer during the morning session, number 125, had three parts. The Petitioner did not answer the second part and answered the third part correctly. On the first part, she properly set up the multiple equations necessary to answer the question but made a calculation error in the last step, and her answer was 810 linear feet instead of the correct answer of 630 linear feet.

   
   

4. Question 125 was graded in accordance with a scoring plan that set out the following "'Problem Weighting": t' Part (a) 4 points, Part (b) 4 points, Part (c) 2 points." It also provided, in part, that a score of six points out of ten, signifying "minimum

   competence, required: "Correct solution to either part (a) or part

   (b) and part (c) or a solution with a combination of two deficiencies consisting of some series of logic errors, computation errors, or insufficient accuracy as defined above." The next highest possible score, according to the scoring plan, was score of four out of ten for "more than a rudimentary knowledge but insufficient to demonstrate competence."

   
   

5. On question 125, the Petitioner was awarded two out of a possible four points on part (a) (in which the Petitioner's solution contained a calculating error), none of four possible points on part (b) (which the Petitioner did not answer), and both of the two possible points on part (c) (which the Petitioner answered correctly), for a total of four out of the ten possible points on question 125.

   
   

6. The Petitioner's score on question 125 was consistent with the scoring plan, which also was applied to all of the other candidates.

   
   

7. Both question 125 and the scoring plan were provided by the National Council of Examiners of Engineers and Surveyors. A primary purpose of the scoring plan is to ensure consistently rational scoring. To eliminate the chance of bias, questions are graded "blindly," using the scoring plan.

   
   

8. Statistically, question 125 has achieved reliable test results. The candidates scoring higher on the examination overall also scored better on question 125.

   
   

9. The Petitioner contended that there is a better scoring plan for question 125 under which she would have scored six out of a possible ten points. While the Petitioner's proposed scoring plan is logical, and may even be a better scoring plan, the Petitioner did not prove that the scoring plan utilized by the Department was arbitrary or devoid of logic.

   
   

10. One of the multiple choice questions the Petitioner chose to answer during the afternoon session, number 423, had ten parts, each worth one point. The Petitioner received no credit for her answers to parts (2) and ( 3 ),

    
    

11. Parts (2) and (3) of question 423 are prefaced by a descriptor of the characteristics of a freeway section. One of the characteristics is a "V/C" of 0.60; another is a peak hour factor (PHF) of 0.90.

    
    

12. Part (2) of question 423 asked for the "maximum number of vehicles going west during a one-hour period under these conditions." To answer the question, the Petitioner solved for

    "maximum service flow," assuming ideal conditions. The Petitioner did not apply the PHF of 0.90; as a result, her answer did not take PHF into consideration.

    
    

13. It is found that part (2) of question 423 is at least ambiguous. It asked for "maximum number of vehicles . . . during a one-hour period," not the actual number of vehicles. This could lead one to believe that it asked for "maximum service flow, extended over one entire hour, without considering the PHF. On the other hand, the question specified vehicles "going west . . . under these conditions," implying the actual volume and the application of the PHF.

    
    

14. Only 31% of the candidates answering question 423 answered part (2) correctly. (43.6% gave the same answer as the Petitioner.) In and of themselves, those statistics do not prove that the question was invalid or unreliable. But they support the finding that the question was at least ambiguous.

    
    

15. Part (3) of question 423 asked the candidates to assume a capacity in passenger cars per hour per lane (pcphpl) and to solve for the "average travel speed . . . under these conditions." The Petitioner solved for the average speed at the volume of traffic that would result from the given number of pcphpl, under "ideal conditions," without applying the "V/C" ratio of 0.60.

    
    

16. It is found that part (3) of question 423 also is at least ambiguous. After having given the candidates the characteristics of the road in the preface to question 423, including a "V/C" of 0.60, part (3) asked the candidates to assume a pcphpl. It is not clear whether the given pcphpl was intended to override, or be the result of the application of the V/C' factor of 0.60, or whether the "V/C" factor was supposed to be applied to the pcphpl.

    
    

17. On part (3) of question 423, 52.6% of the candidates answering the question chose the answer for which credit was given; 28.3% chose the Petitioner s answer. Those statistics do not prove that the question was invalid or unreliable. But neither was there any evidence that they would be inconsistent with a finding that the question was at least ambiguous.

    
    

    CONCLUSIONS OF LAW

    
    

18. In order to be licensed to practice as a professional engineer in Florida, applicants for licensure must successfully complete an examination administered and graded by the Department of Business and Professional Regulation. Section 471,U13, Fla. Stat. (1993).

19. The Petitioner in this case has the burden to prove her examination challenge by a preponderance of the evidence. Cf. Florida Dept. of Transp. v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

    
    

20. The Petitioner proved that parts (2) and (3) of question

423 were ambiguous. But even if the Petitioner were receive full credit for them, she still would have been one raw score point short of passing the October, 1993, Principles and Practices of Civil/Sanitary Engineering Examination. And, otherwise, the Petitioner did not prove that the examination instructions were substantially insufficient or misleading, cf. Alvarez v. Dept. of Prof. Req., Bd. of Acupuncture, 458 So. 808 (Fla. 1st DCA 1984), or that the Department administered or graded his examination arbitrarily, capriciously, or devoid of logic and reason, cf. State of Florida v. J.M. Pepper, 155 So. 2d 383 (Fla. 1st DCA 1963); Topp v. Bd. of Electrical Examiners for Jacksonville Beach, 101 So. 2d 583 (Fla. 1st DCA 1958).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business and Professional Regulation, Board of Professional Engineers, enter a final order granting the Petitioner's examination challenge in part, to the extent that parts (2) and (3) of question 423 of the October, 1993, Principles and Practices of Civil/Sanitary Engineering Examination are found to be ambiguous, but nonetheless finding that the Petitioner did not successfully complete the examination.

RECOMMENDED this 15th day of September, 1994, in Tallahassee, Florida.

J.LAWRENCE J JOHNSTON

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 15th day of September, 1994.

APPENDIX

To comply with the requirements of Section 120.59(2), Fla.

Stat. (1993), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1. Accepted and incorporated to the extent not subordinate or unnecessary.

2. Accepted and incorporated.

3. Rejected, as not proven, that the Petitioner's proposed scoring plan is only 'appropriate, reasonable, and fair deduction for a math error," or that the deduction of two points was "a 50% deduction, or a "totally unfair and unreasonable percentage" or that it is "inappropriate . . . to tie the solutions or partial solution together." Otherwise, accepted but subordinate and argument.

4. Rejected, as not proven, that the two-point deduction for a math error is a 50% deduction and is clearly inconsistent with" the reference material. Otherwise, accepted but subordinate and argument.

5. Rejected, as not proven, that the Petitioner received a 50% deduction on question 125, or that the NCEE scoring plan was inconsistent and should be considered arbitrary by problem chosen." Otherwise, accepted but subordinate and argument.

6. Rejected, as not proven, that NCEE's "two point (20%) increment grading scale is an unfair, unlogical, and unreasonable means to evaluate" or that it is "too rigid to fairly evaluate detailed engineering solutions."

7. Accepted but subordinate and unnecessary.

8. Rejected as not proven.

9.-10. Accepted but subordinate and unnecessary.

1. Rejected as not proven that question 423(2) asked for "maximum volume or "service volume," or that the PHF was added "arbitrarily, and for no reason." Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

2. Accepted and incorporated to the extent not subordinate or unnecessary.

3. Rejected as contrary to facts found that 43.6% is a majority. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and found that question 423(3) is ambiguous.

4. Rejected as not proven that LOS "Et" conditions should be assumed or that "A" is the best answer, or that 423(3) is "devoid of reason, capricious, and a 'trick' question." Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and found that question 423(3) is ambiguous.

Respondent's Proposed Findings of Fact.

1.-9. Accepted and incorporated to the extent not subordinate or unnecessary.

1. First sentence, accepted and incorporated. Second sentence, rejected as contrary to facts found that an adjustment necessarily and unambiguously follows.

2. Accepted and incorporated to the extent not subordinate or unnecessary.

3. Rejected as contrary to facts found that an adjustment necessarily and unambiguously follows.

4. Accepted and incorporated.

5. Accepted and incorporated. However, PHF is used to determine actual maximum numbers of vehicles, not maximum service flow or maximum possible numbers of vehicles.

6. Rejected. (It asked for average speed.)

7. Rejected as contrary to facts found that an adjustment necessarily and unambiguously follows.

8. Rejected as not established by the evidence that they are statistically valid, only that they are not statistically invalid.

COPIES FURNISHED:

Jane A. Caldera

5414 Deerbrooke Circle

Tampa, Florida 33624

Wellington H. Meffert, II, Esquire Assistant General Counsel Department of Business and

Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Jack McRay, Esquire Acting General Counsel

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Angel Gonzalez, Executive Director Board of Professional Engineers Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0764

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the Board of Professional Engineers written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the Board of Professional Engineers concerning its rules on the deadline for filing exceptions to this Recommended Order.

Docket for Case No: 94-002963

Orders for Case No: 94-002963