STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RAMON L. AROSEMENA, )

)

Petitioner, )

)

vs. ) Case No. 96-0032

)

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this case on June 27, 1996, by means of a televideo conference between Tallahassee, Florida, and Miami, Florida. The hearing was conducted before Michael M. Parrish, Administrative Law Judge, the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Joseph W. Lawrence, II, Esquire

Cummings, Lawrence & Vezina, P.A. 1600 Southeast 17th Street Causeway Suite 304

Fort Lauderdale, Florida 33316

For Respondent: R. Beth Atchison, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

This is a licensure examination proceeding in which the Petitioner asserts entitlement to a higher grade on the examination.

PRELIMINARY STATEMENT

At the final hearing on June 27, 1996, the Petitioner testified on his own behalf and also presented the testimony of four other witnesses. The Petitioner also offered fourteen exhibits, all of which were received. The Respondent presented the testimony of two witnesses. The Respondent also offered ten exhibits, all of which were received.

At the conclusion of the final hearing the parties were allowed ten days from the filing of the transcript within which to file their respective proposed recommended orders. The transcript was filed with the Division of Administrative Hearings on July 8, 1996.

By letter dated July 9, 1996, and filed on July 12, 1996, the Petitioner advised the Administrative Law Judge that the parties had reached a tentative settlement and that all parties requested that the case be placed in abeyance pending consideration of the settlement by the Board of Professional Engineers. Pursuant to the parties’ request, the deadline for the submission of proposed recommended orders was extended for an indefinite period.

By status report filed on October 31, 1996, the parties advised that their settlement efforts had been unsuccessful. By order issued on November 1, 1996, a deadline of November 12, 1996, was established for the filing of proposed recommended orders. Thereafter, both parties filed timely proposed recommended orders containing proposed findings of fact and conclusions of law. The parties’ proposed recommended orders have been carefully considered during the preparation of this Recommended Order.

By way of introduction to the findings of fact which follow, it is noted that the central issue in this case concerns the scoring of a single problem on the subject examination; problem number 125. The Petitioner was awarded a grade of four points on that problem. He claims entitlement to a grade of six points on that problem. If the Petitioner is awarded the two additional points he seeks, he will have enough total points to achieve a passing grade on the subject examination. Without those two additional points the Petitioner will fail the subject examination.

FINDINGS OF FACT

1. On October 20, 1995, the Department of Business and Professional Regulation notified Petitioner Ramon L. Arosemena that in response to challenges filed during the review of the Petitioner’s April 1995 Professional Engineering Examination, the National Council of Examiners for Engineering and Surveying

   (NCEES) had awarded the candidate an overall examination score of

   
   

   68.10. The minimum passing examination score is 70.00.

   
   

2. With regard to the Petitioner’s answers to problem 125, in a document titled “Rescoring Results” the NCEES offered the following explanation as to why it concluded that the appropriate grade for those answers was 4 points, rather than the 6 points sought by the Petitioner:

   
   

   SCORER’S COMMENTS:

   
   

   The examinee in the request for a regrade overlooked the error made in calculating the pavement volume. The examinee’s volume was 25% of the correct value which carried over to erroneous results in the constituent weights. This was an error which is referred to in the approved scoring plan as calling for a two point grade reduction. As the examinee has conceded the entrained air was ignored in his/her solution. The approved scoring plan specifically recognizes this error as calling for a four point grade reduction.

   
   

   Considering both errors a grade of four is appropriate.

   
   

   SCORER’S RECOMMENDATION:

   
   

   Recommended score = 4.

   
   

3. The candidate information booklet includes the following information regarding the manner in which certain problems on the examination would be scored:

   Written solutions to the essay type problems are scored according to an Item Specific Scoring Plan (ISSP) which is prepared for each examination problem prior to its use within an examination. The ISSP is usually written by the author of the problem, who

   also is responsible for determining the kind of answer which would constitute “minimal” level of performance. The ISSP defines the kind of response (i.e., answer to the problem) that would receive a score of zero, a score of two, a score of four, a score of six, a score of eight, and a score of ten. Both the problem statement and the scoring plan are reviewed by persons familiar with each discipline prior to using a problem on an examination form. Each essay type examination problem is scored by referring to the scoring plan for that particular problem. Scoring is done by a professional engineer, who is familiar with engineering practice and with the knowledge and skills that are required for an applicable engineering task. The number of points obtained by each candidate on each of the eight problems submitted are totalled to determine an overall raw score, with a maximum raw score of eighty (80). The raw score is then converted to a scale on which the scores range between zero and one hundred. Please note that this converted score scale does not represent the percentage of problems answered correctly. In order to pass the Principles and Practice examination, candidates must achieve a raw score of 48, which represents a score of 70 on the scale of one hundred points.

4. The examination problem at issue in this case, problem number 125, described a construction project for a concrete highway. Following the description of the project, the examinee was asked to provide a three part response. Part (a) required the examinee to calculate the quantities of several specified ingredients necessary to complete the project described in the problem. Part (b) required the examinee to compute the yield, in cubic feet per sack of cement, of the concrete mix described in the problem. Part (c) required the examinee to explain why

   concrete with a specified slump would or would not be suitable for slip-form paving.

5. The Scoring Plan for problem number 125 reads as follows:

   SCORING PLAN

   
   

   10 EXCEPTIONAL COMPETENCE: The analysis is correct in all aspects. The numerical results are within plus or minus 2 [percent] of the approved solution. The answer to part c is correct.

   
   

   8 MORE THAN MINIMUM BUT LESS THAN EXCEPTIONAL COMPETENCE: One of the following will result in a two point score reduction.

   1. part c explanation is incorrect or inadequate

   2. as a result of one computational error the numerical results of part a do not fall within the required tolerance (see 10 point score).

   3. the amount of required water was correctly calculated in cubic feet but not translated to gallons as required in the problem statement and/or the weights were not given in tons.

   4. the total volume was calculated incorrectly.

   
   

   6 MINIMUM COMPETENCE: Two of the defaults described in the 8 point scoring were made, or, one of the following individual errors were made;

   1. the 5 [percent] waste factor was not incorporated into the solution, or used incorrectly.

   2. analysis of part b is incorrect.

   3. the given entrained air was ignored.

   
   

   4 MORE THAN RUDIMENTARY KNOWLEDGE BUT INSUFFICIENT TO DEMONSTRATE COMPETENCE: The examinee was unable to correctly define all of the weight-volume relationships required to solve part a, (an error was made in the

   analysis or use of mix ratio, specific gravity, air volume or comparable relationship), or

   
   

   three of the defaults described in the 8 point scoring were made.

   
   

   2 RUDIMENTARY KNOWLEDGE. Multiple errors were made in the weight-volume relationships required to solve part a, and part c is incorrect or inadequate.

   
   

   0 ZERO: Nothing presented to indicate knowledge of the solution to the problem.

   
   

6. Implicit in the definitions of the ten-point response, the eight-point response and the six-point response is the notion that the candidate did not make any errors in addition to the errors described in the definitions of those responses.

7. The Scoring Plan was accompanied by a solution sheet which contained the details of all of the calculations necessary to arrive at the correct answers to parts (a) and (b), and also included a description of the correct answer to part (c).

8. Problem number 125 is a reasonable and logical problem to include in an engineering licensure examination. The Item Specific Scoring Plan for problem number 125 is a reasonable and logical method for scoring responses to problem number 125. Problem number 125 is a problem that a minimally competent candidate for licensure should be able to answer correctly.

9. The Petitioner’s response to part (c) was correct. The Petitioner’s response to part (b) was incorrect. It was incorrect because it failed to take into account the volume of the given entrained air. The Petitioner’s answer to part (a) was

   incorrect. It was incorrect because the Petitioner made at least two computational errors.1 One computational error was the failure to take into account the number of highway lanes, which caused the Petitioner’s answer to be one-fourth of what it would have been had that error not been made. The other computational error was the failure to take into account the volume of the entrained air.

10. The Petitioner is entitled to have a grade assigned to his response to problem number 125 that is consistent with the scoring plan for problem number 125.2 Application of the scoring plan to the Petitioner’s response to problem number 125 is contained in the paragraphs which follow.

11. The Petitioner is not entitled to ten points for his response to problem number 125 because his analysis is not correct in all respects and because none of his numerical results are within plus or minus two percent of the approved solution.

12. The Petitioner is not entitled to eight points because he made at least two of the errors described in the definition of an eight-point response. First, as a result of computational error the Petitioner’s numerical results for part (a) of problem number 125 do not fall within the required tolerance of plus or minus two percent. Second, in the Petitioner’s response to part

    (a) the total volume was calculated incorrectly. Therefore the Petitioner’s response does not meet the definition of the eight- point response because the definition allows only one such error.

13. The Petitioner is not entitled to six points because he made at least two of the errors described in the definition of the eight-point response and he ignored the given entrained air, and his analysis of part (b) is incorrect. The six-point definition applies to a candidate who makes two of the errors described in the eight-point scoring definition, but it does not apply to a candidate who makes those two errors and in addition makes one or more of the errors described in subsections (i), (ii), and (iii) of the definition of the six-point response. Therefore, the Petitioner is not entitled to six points for his response to problem number 125.

    CONCLUSIONS OF LAW

    
    

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

15. In a case of this nature the Petitioner bears the burden of proving, by a preponderance of the evidence, that he is entitled to the relief he seeks. In order to succeed in an examination challenge of this nature, the Petitioner must establish that the examination was in some way faulty, was arbitrarily or capriciously worded, that his answers to the challenged question were arbitrarily or capriciously graded, or that he was arbitrarily or capriciously denied credit through a grading process devoid of logic or reason. Harac v. Department of Professional Regulation, 484 So.2d 1333, 1338 (Fla. 3d DCA

    1986); State ex rel. I. H. Topp v. Board of Electrical Contractors for Jacksonville Beach, Florida, 101 So.2d 583 (Fla. 1st DCA 1958); State ex rel Glaser v. J. M. Pepper, 155 So.2d 383 (Fla. 1st DCA 1963).

16. The greater weight of the persuasive evidence in this case is to the effect that the challenged examination problem was a fair and reasonable problem, that the item specific scoring plan for the challenged problem was fair and reasonable, and that a fair and reasonable application of the scoring plan to the Petitioner’s answers to the challenged problem would entitle the Petitioner to no more than a score of 4, the score he has already been given. The evidence is insufficient to demonstrate any arbitrary or capricious conduct with regard to the challenged problem, the scoring plan, or the application of that plan to the Petitioner’s answers.

17. In this regard it is important to note that even the Petitioner’s testing expert testified that: “One must go strictly by the definition of the six.” The Petitioner’s answers to problem number 125 do not meet the definition of a six-point answer in the Item Specific Scoring Plan, nor do they meet the definitions of any of the higher point answers. Accordingly, the highest score to which the Petitioner is entitled is 4 points.

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 has failed to demonstrate entitlement to the relief he seeks and dismissing the Petition.

DONE AND ENTERED this 18th day of February, 1997, in Tallahassee, Florida.

MICHAEL M. PARRISH

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 1997.

ENDNOTES

1/ The Petitioner’s computational error of failing to take into account the number of highway lanes described in problem number

125 has been viewed in the light most favorable to the Petitioner; i.e., it has been treated as only one computational error. It could arguably be treated as four computational errors, because part a of problem number 125 required the candidate to compute the quantities of four specified components necessary to complete the project described in the problem. The four components were portland cement, fine aggregate, coarse aggregate, and water. The Petitioner’s computation of the necessary quantity of each of those four components was approximately one-fourth of the correct quantity because in each of the four computations he failed to take into account the number of highway lanes described in the problem.

2/ In this regard, the “Scorer’s Comments” quoted in paragraph 2 of the Findings of Fact are not an accurate description of why the Petitioner’s responses to problem number 125 are entitled to a score of no more than four. The inaccuracies in that description do not, however, provide a basis for the relief sought by the Petitioner. Application of the scoring plan, as written, to the Petitioner’s responses to problem number 125 leads to the same ultimate conclusion; the Petitioner is entitled to no more than four points for his responses to that problem.

COPIES FURNISHED:

R. Beth Atchison, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0750

Joe Lawrence II, Esquire Cummings, Lawrence & Vezina

1600 Southeast 17th Street Causeway, Suite 304 Fort Lauderdale, Florida 33316

Mr. Ramon L. Arosemena 7780 Southwest 66th Street Miami, Florida 33143

Angel Gonzalez, Executive Director Board of Professional Engineers Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Lynda L. Goodgame, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-000032

Orders for Case No: 96-000032