STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WAYNE TERWILLIGER, )

)

Petitioner, )

)

vs. ) CASE NO. 94-3745

)

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on January 27, 1995, at Fort Lauderdale, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Thomas A. Connick, Esquire

Boutwell & Connick

411 East Hillsboro Boulevard Fort Lauderdale, Florida 33441

For Respondent: Wellington H. Meffert, II, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUE

This is an examination challenge proceeding in which the Petitioner asserts that he is entitled to a passing grade on the professional engineering licensure examination. As narrowed at hearing, the sole issue is whether the Petitioner is entitled to at least two more points for his answer to Item 258 on the licensure examination.

PRELIMINARY STATEMENT

As originally framed, this proceeding raised disputed issues about three questions on the subject licensure examination. The Petitioner abandoned his challenge to one of the questions and the Respondent conceded that the Petitioner was correct about one of his challenges. The proceeding went to hearing on the issue of whether the Petitioner was entitled to any additional points for his response to the one remaining disputed question.

At the formal hearing the Petitioner presented the testimony of Dr. W. Kinzy Jones (an expert in engineering), and also offered one exhibit which was

received in evidence. The Respondent offered the testimony of Mr. Joseph W. Arnett (an expert in engineering), and Dr. Joseph Klock (an expert in psychometrics). The Respondent also offered ten exhibits which were received in evidence.

At the conclusion of the hearing the parties requested, and were granted, ten days from the filing of the transcript within which to file their proposed recommended orders. The transcript of the hearing was filed with the Hearing Officer on February 21, 1995. Thereafter, both parties filed timely proposed recommended orders containing proposed findings of fact and conclusions of law. All proposed findings of fact submitted by all parties are specifically addressed in the appendix to this Recommended Order.

FINDINGS OF FACT

1. The Petitioner sat for the October 1993 administration of the licensure examination for Metallurgical Engineering. When his examination was graded, he was assigned a raw score of 45 points. A raw score of 48 points is the minimum passing grade on the subject examination.

   
   

2. The Respondent stipulated at hearing that the Petitioner is entitled to one additional raw score point, which brings the Petitioner's total undisputed raw score to 46.

   
   

3. One of the essay questions on the subject examination was Item 258. According to the scoring plan for Item 258, an exam-taker could earn from 0 to

   10 points in two-point increments depending on the quality of his answer. The scoring plan for Item 258 specifies that 2 points should be awarded for an answer that demonstrates "rudimentary knowledge" and that 4 points should be awarded for an answer that demonstrates "more than rudimentary knowledge but [is] insufficient to demonstrate competence."

   
   

4. When the Petitioner's examination was graded the first time, he was awarded 0 points for his answer to Item 258. When the Petitioner's examination was regraded, he was awarded 2 points for his answer to Item 258. 1/

   
   

5. The evidence at hearing establishes that the Petitioner's answer to Item 258 demonstrates more than rudimentary knowledge, but is insufficient to demonstrate competence. 2/ Accordingly, pursuant to the scoring plan for Item

258 the Petitioner is entitled to receive 4 points for his answer to Item 258.

CONCLUSIONS OF LAW

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

   
   

2. The Respondent is authorized to impose a licensure examination and the Petitioner must pass the examination in order to become licensed. Sections

   471.013 and 471.015, Florida Statutes.

   
   

3. The applicant for a license carries the ultimate burden of persuasion to show entitlement to licensure. Florida Department of Transportation v. J.W.C., Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Pershing Industries, Inc. v. Department of Banking and Finance, 591 So.2d 991 (Fla. 1st DCA 1991).

4. In this case the engineering experts for both parties ultimately agreed that the Petitioner's answer to Item 258 demonstrates more than rudimentary knowledge, but is insufficient to demonstrate competence. Such being the case, the Petitioner is entitled to the two additional points he seeks for his answer to Item 258.

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case concluding that the Petitioner is entitled to a raw score of 48 points on the subject examination, which is a passing grade.

DONE AND ENTERED this 8th day of March 1995 in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

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 8th day of March 1995.

ENDNOTES

1/ The Petitioner's conceded raw score of 46 points includes the 2 points he was granted for Item 258 when his examination was regraded.

2/ Both of the experts in engineering who testified at the formal hearing were of the opinion that, in spite of the numerous deficiencies in the Petitioner's answer, the Petitioner's answer to Item 258 demonstrates more than rudimentary knowledge, but is insufficient to demonstrate competence.

APPENDIX

The following are the specific rulings on all proposed findings of fact submitted by all parties.

Proposed findings submitted by Petitioner:

The Petitioner's proposed findings of fact consist of six somewhat lengthy unnumbered paragraphs. The rulings which follow address the unnumbered paragraphs in the order in which they appear.

First Paragraph: Rejected as subordinate and unnecessary details, the substance of which are addressed in the Preliminary Statement.

Second Paragraph: Rejected as subordinate and unnecessary details. (All of the matters described in this paragraph were considered during the process of determining what weight to give to Dr. Jones' testimony, but it serves no useful purpose to include these subordinate matters in the findings of fact.)

Third Paragraph: First two sentences are accepted in substance. The remainder of this paragraph is rejected as either subordinate and unnecessary details, as argument, or as unduly repetitious.

Fourth Paragraph: The last sentence has been accepted. The remainder of this paragraph is rejected as subordinate and unnecessary details.

Fifth Paragraph: The fourth and fifth sentences of this paragraph are accepted in substance. The remainder of this paragraph is rejected as constituting subordinate and unnecessary details.

Sixth Paragraph: The first two sentences are rejected as arguments about the credibility of witnesses. The third and fourth sentences are accepted in substance. The fifth and sixth sentences are rejected as subordinate and unnecessary details or as unduly repetitious. The seventh sentence is accepted in substance. The eighth sentence is rejected as subordinate and unnecessary details or as unduly repetitious.

Proposed findings submitted by Respondent:

Paragraph 1: First sentence accepted. Second sentence rejected as subordinate and unnecessary details.

Paragraph 2: Accepted in substance.

Paragraph 3: Accepted that Item 258 has a scoring plan. The remainder of this paragraph is rejected as an incorrect interpretation of the scoring plan.

Paragraph 4: Accepted.

Paragraph 5: Rejected as an over-simplification of the evidence at hearing and as inconsistent with the credible opinion evidence of both engineering experts at the hearing to the effect that the Respondent's answer to Item 258 demonstrates more than rudimentary knowledge, but is insufficient to demonstrate competence.

Paragraph 6: Rejected as subordinate and unnecessary details in view of the expert opinions mentioned immediately above.

Paragraphs 7, 8, 9, and 10: Rejected as subordinate and unnecessary details.

COPIES FURNISHED:

Thomas A. Connick, Esquire Boutwell & Connick

411 East Hillsboro Boulevard Fort Lauderdale, Florida 33441

Wellington H. Meffert, II, Esquire

Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Angel Gonzalez, Executive Director Board of Professional Engineers

Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0755

Jack McRay, General Counsel

Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 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 ten 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: 94-003745

Orders for Case No: 94-003745