STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HENRI V. JEAN, )

)

Petitioner, )

)

vs. )

) Case No. 97-5882

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

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Tampa, Florida, on March 26, 1997, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Henri V. Jean, pro se

3273 Tanglewood Trail

Palm Harbor, Florida 34685

For Respondent: R. Beth Atchison, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0750

STATEMENT OF THE ISSUE

The issue for consideration in this case is whether Petitioner should receive additional credit for his answers to questions 121 and/or 222 on the civil/sanitary engineer examination administered on April 18 and 19, 1997.

PRELIMINARY MATTERS

By examination grade report date July 29, 1997, the Department of Business and Professional Regulation’s Bureau of Testing advised the Petitioner that he had achieved a score of 69 on the civil/sanitary engineer examination administered on

April 18 and 19, 1997, and had, therefore, failed the examination. Petitioner thereafter requested a formal hearing regarding the grading of two problems on the examination, questions 121 and 222, and this hearing ensued.

At the hearing, Petitioner testified in his own behalf and presented the testimony of Dr. Ching Kuo, a geo-technical engineer. Respondent presented the testimony of William Paul Adams, a registered professional engineer in both civil and structural fields and a registered general contractor.

Petitioner accepted Mr. Adams as an expert in the field of civil engineering, and he was so designated. Respondent also introduced Respondent’s Exhibits 1 through 4.

A transcript of the proceedings was furnished and subsequent to the receipt thereof by the undersigned, both parties submitted post-hearing matters which were carefully considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Board of Professional Engineers was the state agency in Florida

   responsible for the licensing of professional engineers in this state and for the regulation of the engineering profession.

2. Petitioner graduated from the University of South Florida in December 1990, with a degree in geo-technical engineering, a sub-specialty of civil engineering. He is not, nor does he claim to be, a structural engineer. He has practiced in the field of geo-technical engineering since his graduation and has taught soil mechanics at the master’s level at the university. He sat for the professional engineer’s examination administered by the Respondent in April 1997.

3. Thereafter, by grade report dated July 29, 1997, the Department’s Bureau of Testing notified Petitioner that he had earned a score of 69.00 on the examination he had taken. Since a passing score for the examination which Petitioner took is 70.00, Petitioner failed the examination. Petitioner requested a formal hearing to challenge the grading of examination questions numbers

   121 and 222, on each of which he earned a score of four. The maximum obtainable score on each question is ten.

4. On question 121, the candidate is given a situation involving a sheet-pile wall section, and is asked to (a) sketch and dimension the earth pressure diagram acting on the wall after the proposed dredging has been completed; and (b) determine the factor of safety against the kick-out after the dredging.

5. Scoring of the Petitioner’s examination was done by the National Council of Examiners for Engineering and Surveying

   (Council). The Council determined that, with regard to requirement (a), Petitioner’s pressure distribution was of the correct form, but the labeling of the distribution had a major error. Petitioner assumed an incorrect factor which was deemed to be a major error calling for, under the approved scoring plan, a minimum four-point deduction. With regard to requirement (b), Petitioner chose not to solve for the factor of safety as he was

   
   

   required to do. This resulted in a minimum reduction of two additional points.

6. This evaluation was concurred by Mr. Adams, the Board’s expert witness, in his testimony at hearing. Mr. Adams noted that where, as here, the engineer is dealing with soil mechanics, the at-rest conditions are one thing. The active and passive

   (A and P) conditions are the more dynamic, and here, where the problem calls for removal of soil from in front of a retaining wall, A and P pressures should have been used instead of at-rest pressures. Adams also concluded that Petitioner’s cited authority was not valid in this case. This authority used the at-rest pressure coefficient when all the authorities

   Mr. Adams could find used the A and P pressure coefficient.

   
   

7. Petitioner admits that the coefficients utilized in determining earth pressures are A, P and at-rest (O). In this case, the whole problem must be considered. A tie-back system is presented, and in that case the sheet pile and the tie-back are

   assumed to hold the soil behind the wall in an at-rest condition so long as the sheet-pile wall does not move or deflect.

   Petitioner contends that Mr. Adams’ determination that removing the soil would destroy stasis and cause the wall to move is erroneous. In fact, he contends, the sheet-pile wall and the anchor system must move before the Board’s argument holds. He cites an authority in support of his position which was also cited to the Council scorer who, at Petitioner’s request, rescored his answer.

   
   

8. The Council official who rescored Petitioner’s answer did not have access to Petitioner’s cited authority but rejected the citation as either incorrectly cited or incorrect in itself. Petitioner’s error called for a four-point reduction in score as to (a). Further, as to requirement (b), Petitioner, though asked to solve for the factor of safety against rotation, chose not to do so. This calls for an additional two-point reduction. Independent review of Petitioner’s answer, including an evaluation of his cited authority, and consideration of the other evidence pertinent to this issue, including his testimony, that of his witness, and the rescoring results by the Council, does not satisfy the undersigned that Petitioner’s answer merits additional credit. The score of four, as awarded, is appropriate.

9. Question 222 deals with a cantilevered retaining wall with a wide foundation and piling in two rows, some in front and some in back, to support it. The candidate is required to determine the total lateral thrust per linear foot acting on the wall in issue; to determine the vertical load on a front row pile; and to explain possible ways that the pile foundation can resist the lateral thrust.

10. According to Mr. Adams, Petitioner incorrectly calculated the lateral load by omitting the proper depth of the wall. With regard to the vertical loading, the Petitioner did not get to the proper vertical load on the front pile but received partial credit for other calculations he performed. As for the last requirement, one part of Petitioner’s answer was incorrect in that he did not explain passive pressures properly. What Petitioner mentioned was incorrect, and he did not mention battering of the piles, which was expected to be noted. According to Mr. Adams, Petitioner got two parts of the question correct, each of which is worth two points. Therefore, he received a score of four points.

11. Petitioner contends that the Board and the Council are being too restrictive in their approach to the problem and not taking into account the whole problem. He claims that though he arrived at the wrong figure in calculating the lateral load, that does not justify his receiving no credit for that segment since the method he used for calculating the thrust was correct. He

    admits to having erroneously neglected the weight of the soil, but contends that his method of determining the solutions to resist lateral thrust is as good as that of the Board and the Council.

12. Petitioner was given only partial credit for his use of the correct equation to calculate the lateral thrust because he used the wrong depth. His answer to the second part was wrong in that he completely neglected the weight of the soil and calculating the pile load, even though he used the correct figure to multiply the load per foot of the wall. His answer to the third requirement, dealing with lateral resistance of the pile, was insufficient to warrant a full award. Taken together, his answer, in the opinion of the Council’s scorer, merited only an award of four points. Petitioner did not show sufficient basis for increasing this award.

13. The evidence presented by the Board clearly established that both questions in issue provided enough information to allow the candidate to answer them correctly, and both are questions that a candidate for licensure should be able to answer. The scoring plan for these questions was not shown to be inappropriate, and there is no evidence that it was not properly utilized.

    CONCLUSIONS OF LAW

    
    

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

15. Petitioner seeks the award of additional points for his answers to problems 121 and 222 on the April 1997 Civil Engineer Examination on the basis that his answers were deserving of a higher award.

16. The burden of proof is on the Petitioner to establish by a preponderance of the evidence that the examination was faulty or that it was arbitrarily or capriciously worded; that his answers to the challenged problems 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. 3DCA 1986); State ex rel I. H. Topp v. Board of Electrical Contractors for Jacksonville Beach, Florida, 101 So. 2d 583 (Fla. 1DCA 1958; State ex rel Glasser v. J. M. Pepper, 155 So. 2d 383 (Fla. 1DCA 1963).

    
    

17. Petitioner argued that his answers to the problems in issue were equally meritorious as those considered correct by the Board/Council. He claims that the Council chose to disregard other methods for solving the problems than those of its own choice and failed to give credit for factors in Petitioner’s

proposed solutions which were, in his opinion and that of his witness, equally valid. Notwithstanding that argument, Petitioner’s presentation did not support his position sufficiently to meet his burden, and the testimony of his witness did not provide the necessary support to demonstrate his solutions were deserving of additional credit.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Professional Engineers enter a Final Order in this matter denying Petitioner additional credit for his answers to Questions 121 and 222 on the April 1997 Civil Engineer Examination.

DONE AND ENTERED this 30th day of April, 1998, in Tallahassee, Leon County, Florida.

ARNOLD H. POLLOCK

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) 921-6947

Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1998.

COPIES FURNISHED:

Henri V. Jean

3273 Tanglewood Trail

Palm Harbor, Florida 34685

R. Beth Atchison, Esquire 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

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: 97-005882

Orders for Case No: 97-005882