STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARL A. BROWN, )

)

Petitioner, )

)

vs. ) Case No. 97-5945

)

DEPARTMENT OF BUSINESS ) AND PROFESSIONAL REGULATION, ) PROFESSIONAL ENGINEERING )

LICENSING BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

An administrative hearing was conducted on February 11, 1998, in Orlando, Florida, by Daniel Manry, Administrative Law Judge, Division of Administrative Hearings. The parties, witnesses, and court reporter attended the hearing in Orlando. The undersigned participated by video conference from Tallahassee, Florida.

APPEARANCES

For Petitioner: Carl A. Brown, pro se

9313 Sonoma Drive

Orlando, Florida 32825

For Respondent: R. Beth Atchison

Department of Business

and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner is entitled to credit for answers to any one or all of five challenged questions

on the structural I engineering examination that Petitioner took in April 1997 (the "structural engineering examination").

PRELIMINARY STATEMENT

By Examination Grade Report dated July 29, 1997, Respondent notified Petitioner that he did not pass the written portion of the structural engineering examination. Petitioner timely requested an administrative hearing. Respondent referred the matter to the Division of Administrative Hearings to conduct the hearing.

At the hearing, Petitioner testified in his own behalf, presented the testimony of no other witnesses, and submitted six exhibits for admission in evidence. Respondent presented the testimony of one witness and submitted nine exhibits for admission in evidence.

On March 10, 1998, Petitioner timely filed a late-filed exhibit in the form of the deposition testimony of one witness. The late-filed exhibit was submitted pursuant to the agreement of the parties.

The identity of the witnesses and exhibits, and the rulings regarding each, are set forth in the transcript of the hearing filed on February 20, 1998. Petitioner timely filed his proposed recommended order ("PRO") on March 11, 1998. Respondent timely filed its PRO on March 13, 1998.

FINDINGS OF FACT

1. Petitioner took the structural engineering examination given in April 1997. Respondent administered the examination.

2. The minimum passing score for the structural engineering examination is 70. Respondent earned a score of 69.

3. By Examination Grade Report dated July 29, 1997, Respondent notified Petitioner that he had failed the structural engineering examination. Petitioner requested an administrative hearing.

4. Petitioner's test results were re-scored by the National Council of Examiners for Engineering and Surveying ("NCEES"). The re-score did not increase Petitioner's original score.

5. Credit for an answer to one additional question will result in a score of 70 on examination. Petitioner challenges questions 270-273 on the morning part of the exam and question

   572 on the afternoon part of the exam.

6. The maximum score available for question 270 is 10 points. Petitioner received eight points.

7. Petitioner is not entitled to any additional points for question 270. Petitioner incorrectly calculated the point where "stirrups may be discontinued."

8. The maximum score available for question 271 is 10 points. Petitioner received two points.

9. Petitioner is not entitled to any additional points for question 271. Petitioner did not complete the procedure for two of the required items.

10. Petitioner completed only two items in question 271. He received a correct score of two points because he incorrectly calculated the point where "stirrups may be discontinued."

11. The maximum score available for question 272 is 10 points. Petitioner received two points.

12. Petitioner is not entitled to any additional points for question 272. Petitioner did not provide a correct analysis of the "forces perpendicular and parallel to the grain" or "determine the allowable force at an angle to the grain."

13. The maximum score available for question 273 is 10 points. Petitioner received two points.

14. Petitioner is not entitled to any additional points for question 273. A higher score would require Petitioner to calculate two items correctly. Petitioner calculated only one item correctly.

15. Question 572 has two parts. Part 2 is a multiple choice format.

16. The correct answer to Part 2 of Question 572 is answer "C," or 1.25. Petitioner chose answer "B," or 2.25.

17. Petitioner incorrectly assumed that the structure was a mixed steel/concrete frame. If Petitioner's assumption had been correct, then answer "B," or 2.25, would have been the correct answer.

18. Petitioner failed to show that Respondent did not utilize the scoring plan correctly. The examination provided enough information for a candidate for licensure to answer the problems correctly.

19. The examination was properly designed to test a candidate's competency. The challenged questions are questions

    that a candidate for licensure should be able to answer correctly.

    CONCLUSIONS OF LAW

20. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1). The parties were duly noticed for the hearing.

21. The burden of proof is on Petitioner. Petitioner must show by a preponderance of evidence that the examination was faulty, arbitrarily or capriciously worded or graded, or that Petitioner was arbitrarily or capriciously denied credit through a grading process devoid of logic or reason. Harac vs. Department of Professional Regulation, 484 So. 2d 1333, 1338 (Fla. 3d DCA 1986); State ex rel Glaser vs. J.M. Pepper, 155 So. 2d 383 (Fla. 1st DCA 1963); State ex rel I.H Topp vs. Board of Electrical Contractors for Jacksonville Beach, Florida, 101 So. 2d 583 (Fla. 1st DCA 1958). Petitioner failed to satisfy his burden of proof.

22. The examination was not faulty. Respondent's refusal to credit Petitioner for a correct answer to the challenged questions was not devoid of logic or reason. Neither the wording nor the grading of those questions arbitrary or capricious.

23. The responses identified by Respondent as correct responses are supported by competent and substantial evidence. The responses do not require unreasonable or unusual knowledge on the part of Petitioner or any other candidate that took the exam.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that Respondent enter a Final Order denying Petitioner's challenge to questions 270-273 and 572.

DONE AND ENTERED this 6th day of May, 1998, in Tallahassee, Leon County, Florida.

DANIEL MANRY

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 6th day of May, 1997.

COPIES FURNISHED:

Lynda Goodgame General Counsel

Department of Business and Professional Regulation

Northwood Center

1940 North Monroe Street Tallahassee, Florida 32399-0792

R. Beth Atchison Department of Business

and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399

Carl A. Brown, pro se 9313 Sonoma Drive

Orlando, Florida 32825

Angel Gonzalez, Executive Director Department of Business and

Professional Regulation Division of Licensing Northwood Centre

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: 97-005945

Orders for Case No: 97-005945