STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMAL JAMILZADEH, )

)

Petitioner, )

)

vs. ) Case No. 98-3881

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case by video teleconference on December 18, 1998, at sites located in Miami and Tallahassee, Florida, before Errol H. Powell, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jamal Jamilzadeh, pro se

1216 LaMancha Avenue

Coral Gables, Florida 33134

For Respondent: Natalie Lowe, Esquire

Board of Professional Engineers 1208 Hays Street

Tallahassee, Florida 32301 STATEMENT OF THE ISSUE

The issue for determination is whether Petitioner is eligible for licensure by the Board of Professional Engineers.

PRELIMINARY STATEMENT

In October 1997, Jamal Jamilzadeh (Petitioner) took the Principles and Practice part of the Environmental Engineering Examination (Examination). The minimum score required to pass the Examination was 70. The Department of Business and Professional Regulation, Board of Professional Engineers (Respondent)1 notified Petitioner that he did not successfully complete the Examination, having received a score of 68. By letter dated April 8, 1998, Petitioner requested a hearing pursuant to Subsection 120.57(1), Florida Statutes. On

August 31, 1998, this matter was referred to the Division of Administrative Hearings.

At hearing, Petitioner testified in his own behalf, presented the testimony of one witness and entered six exhibits (Petitioner's Exhibits numbered 1-6) into evidence. Respondent presented the testimony of one witness (an expert) and entered ten exhibits (Respondent's Exhibits numbered 1-10) into evidence.

A transcript of the hearing was ordered. At the request of the parties, the time for filing post-hearing submissions was set for ten days following the filing of the transcript. The transcript was filed on January 6, 1999. An extension of time was granted to the parties for the filing of their post-hearing submissions. The parties timely filed post-hearing submissions (Petitioner on January 26, 1999, and Respondent on January 25,

1999), which have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. In October 1997, Jamal Jamilzadeh (Petitioner) took the Principles and Practice part of the Environmental Engineering Examination (Examination).

   
   

2. The minimum score required to pass the Examination was

1. The Department of Business and Professional Regulation, Board of Professional Engineers (Respondent) notified Petitioner that he had not successfully completed the Examination, having received a score of 68.

   1. The Examination is a national examination and is graded by national examiners, i. e., the National Council of Examiners for Engineering and Surveying (NCEES). A scoring plan is used for grading each question. Each person sitting for the Examination is referred to as a candidate.

   2. By letter dated April 8, 1998, Petitioner notified Respondent that he was challenging questions numbered 320 and 323 on the Examination. In his letter, Petitioner indicated the basis for the correctness of his answers to both questions. For question numbered 323, Petitioner included together with his letter a supporting statement, regarding the correctness of his answer, from a Certified Environmental Trainer (CET).

   3. At hearing, Petitioner withdrew his challenge to question numbered 320. Only question numbered 323 was now being challenged by Petitioner.

   4. For question numbered 323, the highest score achievable was 10. Petitioner received a score of 2.

   5. Petitioner's Examination was returned to the NCEES for review and rescoring. NCEES' rescorer used the same scoring plan that was used for the Examination.

   6. NCEES' rescorer had, for review and consideration, Petitioner's letter dated April 8, 1998, including the supporting statement of Petitioner's CET. NCEES' rescorer did not have access to and had no knowledge of Petitioner's original score for question numbered 323.

   7. NCEES' rescorer recommended that Petitioner receive no additional points for question numbered 323.

   8. Question numbered 323 contains three parts regarding an underground storage tank.

   9. The first part required a candidate to justify whether the underground storage tank was a confined space. NCEES' rescorer recommended that Petitioner receive full credit for this part.

   10. At hearing Petitioner's CET agreed that Petitioner should receive full credit for the first part. However, Respondent's expert disagreed and opined that Petitioner should

       not receive full credit because Petitioner provided only one of the three necessary requirements for a correct response.

   11. Petitioner correctly answered the first part.2 Petitioner should receive full credit for the first part.

   12. The second part required a candidate to list seven confined space program elements for initial entry and inspection of the underground storage tank. NCEES' rescorer found Petitioner's answer to be partially correct in that Petitioner failed to address three major procedural elements.

   13. At hearing, Petitioner's CET opined that Petitioner addressed five of the seven elements. However, Respondent's expert opined that, even though Petitioner addressed six elements, the elements addressed by Petitioner were different variations of two of the seven elements.

   14. Petitioner correctly addressed five of the seven elements.3 Petitioner should receive additional credit for part two.

   15. The third part required a candidate to specify the correct type of respiratory protection and to justify the answer. In reviewing this part, NCEES' rescorer also used the caveats or conditions specified in the supporting statement of Petitioner's CET, which was included with Petitioner's letter dated April 8, 1998. NCEES' rescorer found Petitioner's answer to be incorrect in that Petitioner failed to completely justify his answer.

   16. At hearing, Petitioner's CET opined that Petitioner's answer contained the concept, the intent, and the basis needed, which showed that Petitioner had the knowledge to answer the question presented, but that Petitioner's answer was not as detailed as it could or should have been. Respondent's expert opined that Petitioner failed to reference any monitoring with respect to the use of an air purifying respirator. Petitioner's CET agreed that monitoring was required but opined that monitoring was contained in Petitioner's answer.

   17. Petitioner failed to completely justify his answer in part three.4 Petitioner should receive no additional credit for part three.

   18. Petitioner's answers were not arbitrarily or capriciously graded.

   19. The grading process was not devoid of logic and reason, except for part two of question numbered 323.5 The scoring plan was properly used.

   20. The evidence presented was insufficient to warrant additional credit to Petitioner on question numbered 323. According to the scoring plan, Petitioner is entitled to 2 additional points, bringing his total score to 4 for question number 323.

   21. Petitioner's score on the Examination should be 70. Petitioner has obtained the minimum score required to pass the Examination.

       CONCLUSIONS OF LAW

       
       

   22. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes.

   23. Petitioner, as the applicant, has the ultimate burden of proof to establish that he is entitled to licensure as a professional engineer. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778, 788 (Fla. 1st DCA 1981).

   24. The burden of proof is upon the Petitioner to show by a preponderance of evidence that the Examination was faulty, that the question on the Examination was worded arbitrarily or capriciously, that his answers to the question were arbitrarily or capriciously graded, or that the grading process was devoid of logic and reason. Harac v. Department of Professional Regulation, Board of Architecture, 484 So. 2d 1333, 1338 (Fla. 3d DCA 1986); State ex rel. Glaser v. Pepper, 155 So. 2d 383 (Fla. 1st DCA 1963); State ex rel. Topp v. Board of Electrical Examiners for Jacksonville Beach, 101 So. 2d 583 (Fla. 1st DCA 1958).

   25. Petitioner challenges the grading of his answers to question numbered 323. Petitioner demonstrated that he addressed five of the seven elements in part two of question numbered 323, entitling him to 2 additional points and bringing his total score to 4 for question numbered 323.

   26. Petitioner satisfied his burden of proof.

       
       

   27. Petitioner is entitled to 2 additional points on the Examination, bringing his total score on the Examination to 70, the minimum required to pass the Examination.

       RECOMMENDATION

       
       

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

       RECOMMENDED that the Department of Business and Professional Regulation, Board of Professional Engineers enter a final order finding Jamal Jamilzadeh eligible for licensure.

       DONE AND ENTERED this 30th day of April, 1999, in Tallahassee, Leon County, Florida.

       
       

       ERROL H. POWELL

       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 www.doah.state.fl.us

       
       

       Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1999.

       
       

       ENDNOTES

       1/ The Respondent in this case is the Department of Business and Professional Regulation, Board of Professional Engineers not the Florida Engineers Management Corporation, as asserted by Respondent's counsel. Section 471.038, Florida Statutes (1997), provides in pertinent part:

       1. This section may be cited as the "Florida Engineers Management Corporation Act."

          
          

       2. As used in this section, the term:

1. "Board" means the Board of Professional Engineers.

   
   

2. "Board of directors" means the board of directors of the Florida Engineers Management Corporation.

   
   

3. "Corporation" means the Florida Engineers Management Corporation.

   
   

4. "Department" means the Department of Business and Professional Regulation.

* * *

(3)(b) It is the intent of the Legislature that a single nonprofit corporation be established to provide administrative, investigative, and prosecutorial services to the board and that no additional nonprofit corporation be created for these purposes.

* * *

1. The Florida Engineers Management Corporation is created to provide administrative, investigative, and prosecutorial services to the board in accordance with the provisions of part I of chapter 455 and this chapter. The

   provisions of s. 768.28 apply to the corporation, which is deemed to be a corporation primarily acting as an instrumentality of the state, but which is not an agency within the meaning of s.

   20.03(11). The corporation shall:

   * * *

   
   

   (b) Provide administrative, investigative, and prosecutorial services to the board in accordance with the provisions of part I of chapter 455 and this chapter.

   * * *

   
   

   (g) Operate under a written contract with the department which is approved by the board and renewed annually. . . . The contract must provide for:

   
   

   * * *

   
   

   4. Employment by the department of a contract administrator to actively supervise the administrative, investigative, and prosecutorial activities of the corporation to ensure compliance with the contract and the provisions of part I of chapter 455 and this chapter and to act as a liaison for the department, the board, and the corporation to ensure the effective operation of the corporation.

   
   

   * * *

   
   

2. The corporation may not exercise any authority specifically assigned to the board under part I of chapter 455 or this chapter, including determining probable cause to pursue disciplinary action against a licensee, taking final action on license applications or in disciplinary cases, or adopting administrative rules under chapter 120.

2/ Considering the proof, the opinions of Petitioner's CET were more persuasive.

3/ Ibid.

4/ Petitioner's CET and Respondent's expert both indicated a failure by Petitioner to completely justify his answer.

5/ See Findings of Fact numbered 14-16.

COPIES FURNISHED:

Jamal Jamilzadeh 1216 LaMancha Avenue

Coral Gables, Florida 33134

Natalie Lowe, Esquire

Board of Professional Engineers 1208 Hays Street

Tallahassee, Florida 32301

William Woodyard, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Jim Rimes, 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: 98-003881

Orders for Case No: 98-003881