STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JANE A. CALDERA, )

)

Petitioner, )

)

vs. ) Case No. 97-5588

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, ) BOARD OF PROFESSIONAL ENGINEERS, )

)

Respondent. )

)

RECOMMENDED ORDER

On April 1, 1998, a formal administrative hearing in this case was held in Tampa, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: R. Beth Atchison

Assistant General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0750

For Respondent: Jane A. Caldera

16810 Stanza Court

Tampa, Florida 33624 STATEMENT OF THE ISSUE

The issue in this case is whether the Petitioner is entitled to additional points on the October 1996 Civil Engineering exam.

PRELIMINARY STATEMENT

By grade report dated February 17, 1997, Jane A. Caldera was notified by the Department of Business and Professional

Regulation that she had failed the October 1996 Civil Engineering examination. By letter dated June 24, 1997, Ms. Caldera requested a formal hearing regarding the denial of her application for licensure based on her exam score. The Department of Business and Professional Regulation forwarded the matter to the Division of Administrative Hearings, which scheduled and conducted the proceeding.

At the hearing, Ms. Caldera testified on her own behalf, presented the testimony of two witnesses and had exhibits numbered 1-4 admitted into evidence. The Department presented the testimony of one witness and had exhibits numbered 1-7 admitted into evidence.

During the hearing, the Department acknowledged that the Petitioner was entitled to additional points on question 211, raising her score from two to four points on the question.

A transcript of the hearing was filed. After the hearing, the Petitioner obtained legal counsel who filed a proposed recommended order on her behalf.

FINDINGS OF FACT

1. In October 1996, Jane A. Caldera (Petitioner) took the Principles and Practice of Engineering Examination.

2. By grade report dated February 17, 1997, the Petitioner was notified by the Department of Business and Professional Regulation (Department) that she had received a score of 67 points on the exam. A minimum score of 70 points was required to

   pass the October 1996 engineering examination.

   
   

3. The Petitioner challenges the scoring of her responses on question 121 and question 423 (parts 1, 2 and 4).

   
   

4. Question 121 required mathematical calculation of channel flow rates based on a hypothetical set of facts.

5. On question 121, the Petitioner received four points from a total of ten available points.

6. The evidence establishes that the Petitioner should have received a total of six points for her response to question 121.

7. The scoring plan for question 121 provides that six points are awarded for "minimum competence."

8. The scoring plan for question 121 defines minimum competence as follows:

   Must attempt all parts of part (a) and gives answers for flow depth and flow discharge within [plus or minus] 5 percent but omits flow state. OR Solves flow depth and flow discharge within accuracy of [plus or minus]

   10 percent, for both, and provides demonstrated answer for flow state. OR Neglects inlet loss in solution of flow depth and flow discharge, and provides demonstrated answer for flow state. (Emphasis supplied.)

9. The Petitioner asserts that her answer to question 121 meets the level of minimum competence because she provided the correct answer for flow state, depth and discharge, but neglected to allow for the inlet loss in her answer. The greater weight of the evidence supports the Petitioner's assertion.

10. Respondent's Exhibit 4, a re-score result by the

    National Counsel of Examiners for Engineering and Surveying states that the Petitioner is not entitled to additional points on question 121 because the "examinee's solution does not meet the accuracy criteria set for a score of 6 and did more than required for a score of 2. Therefore, the solution was scored at a level of 4."

11. The re-scoring report is uncorroborated hearsay.

    
    

12. The re-scoring report does not appear to follow the specific criteria set forth in the scoring plan for the examination. The scoring of the Petitioner's response to question 121 was arbitrary and capricious.

13. Question 423 requires calculations related to motor vehicle traffic flow. A hypothetical set of facts are included which identifies the percentages of passenger cars, three-axle trucks, four-axle trucks, and five-axle trucks passing a traffic count station.

14. Question 423, part one, states "[t]he annual number of passenger cars (vehicles) passing through this count station is most nearly:" and provides four possible answers.

15. In order to answer question 423, part one, an examinee must determine the total number of vehicles and then calculate the total number of passenger cars as a percentage of the total vehicle count, in order to correctly answer the question.

16. Question 423, part two, states "[t]he annual number of five-axle trucks (vehicles) passing through this count station is

    most nearly:" and provides four possible answers.

    
    

17. In order to answer question 423, part two, an examinee must determine the total number of vehicles and then calculate the total number of five-axle trucks as a percentage of the total vehicle count, in order to correctly answer the question.

18. The word "(vehicles)" in question 423 parts one and two is extraneous. The question can be answered without inclusion of the reference to "(vehicles)."

19. The Petitioner asserts that inclusion of the reference to "(vehicles)" in the question is confusing and prevents an examinee from responding appropriately. The evidence fails to support the Petitioner's assertion.

20. Question 423, part four, states "[t]he 30th highest hourly volume (vehicles) at the count station is most nearly:" and provides four possible answers.

21. In order to respond to question 423, part four, the "K-factor" must be considered. A K-factor is a ratio commonly expressed as a subscript, related to traffic flow computation.

22. In question 423, part four, the hypothetical fact states that the "K-factor is 0.10" but does not state the K- factor in the form of a subscript.

23. The Department asserts that the examinee should have assumed a value of K30.

24. The Petitioner asserts, and the evidence establishes that the appropriate K-factor in an urban setting is K200.

25. The Department's expert witness was asked if there was any basis to assume that the K-factor in the problem was K30 "as opposed to any of the other K's that are used in traffic engineering problems," to which he replied that there was not.

26. The evidence fails to establish that question 423, part four, contains sufficient information which would lead an examinee to reasonably assume a factor of K30 was applicable under the set of hypothetical facts provided in the question.

27. The Department's assertion that a factor of K30 should be assumed by an examinee is arbitrary and capricious.

    CONCLUSIONS OF LAW

    
    

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

29. The burden is on the applicant at hearing to establish by a preponderance of the evidence that his examination was erroneously or improperly graded. Harac v. Department of Professional Regulation, Board of Architecture, 484 So. 2d 1333 (Fla. 3rd DCA 1986); Department of Transportation v. J.W.C. Co. Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977).

30. As to question 121, the evidence establishes that the grading of the Petitioner's response was arbitrary. The Petitioner's response meets the level defined as "minimum

    competence" and is entitled to an award of six points rather than the four originally awarded. The only evidence to the contrary consists of the rescoring report of the National Counsel of Examiners for Engineering and Surveying. The rescoring report does not appear to appropriately reflect the scoring plan set forth in the examination and is arbitrary and capricious. A capricious action is one taken without thought or reason, or which is taken irrationally. An arbitrary decision is one that is not supported by facts or logic, or that is despotic. Agrico Chemical Company v. Department of Environmental Regulation, 365 So. 2d 759 (Fla. 1st DCA 1979).

    
    

31. Further, the re-scoring report is uncorroborated hearsay. Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it is not sufficient in itself to support a finding unless it would be admissible over objection in civil actions.

    Section 120.57(1)(c), Florida Statutes.

    
    

32. As to question 423, part four, the evidence establishes that the question requires an assumption related to K-factor which is not supported in practice and is not indicated in the related hypothetical situation. The K-factor was identified in a form dissimilar to actual practice in the professional community. The Department's assertion that K30 was appropriate is not supported by the question itself, or by evidence related to other

    K-factors which could have been utilized. Under the circumstances of this case, the grading of the Petitioner's response to question 423, part four, was arbitrary and capricious. Based on the ambiguity of the question, the Petitioner should be credited with an additional point.

33. The evidence fails to establish that the Petitioner is entitled to additional points for her responses to question 423, parts one and two.

34. As set forth in the preliminary statement to this Recommended Order, the Petitioner is entitled to two additional points related to question 211.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business and Professional Regulation enter a Final Order awarding to Jane A. Caldera such additional points as are set forth herein.

DONE AND ENTERED this 16th day of June, 1998, in Tallahassee, Leon County, Florida.

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 1998.

COPIES FURNISHED:

R. Beth Atchison Assistant General Counsel

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0750

Jane A. Caldera 16810 Stanza Court

Tampa, Florida 33624

Mario Romero, Esquire Bull and Associates, P.A.

111 North Orange Avenue, Suite 1700 Orlando, Florida 32801

Lynda L. Goodgame, General Counsel Office of the General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Angel Gonzalez, Executive Director Board of Professional Engineers 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: 97-005588

Orders for Case No: 97-005588