STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES L. MAKO, )

)

Petitioner, )

)

vs. ) Case No. 98-4463

)

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, BOARD ) OF PROFESSIONAL ENGINEERS,1 )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this case on November 19, 1998, by video teleconference at sites in Fort Lauderdale and Tallahassee, Florida, before Michael M. Parrish, an Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: James L. Mako, pro se

7646 Texas Trail

Boca Raton, Florida 33487

For Respondent: Natalie A. Lowe, Esquire

Board of Professional Engineers 1208 Hays Street

Tallahassee, Florida 32301 STATEMENT OF THE ISSUE

The issue in this case is whether the Petitioner is entitled to a passing grade on the Electrical Engineering licensure examination given on April 24, 1998.

PRELIMINARY STATEMENT

By means of an Examination Grade Report dated July 30, 1998, the Petitioner was advised that he had received a failing grade on the Electrical Engineer licensure examination administered on April 24, 1998. The Petitioner thereafter submitted forms requesting review of three specific examination items.

Subsequently, the Petitioner filed a timely request for an evidentiary hearing.

At the hearing the Petitioner testified on his own behalf. He did not call any other witnesses. The Petitioner was allowed to file a late exhibit comprised of copies of the pages of the books he relied upon in support of his position. The Respondent offered eight exhibits, all of which were received and were relied upon by both parties. The Respondent did not call any witnesses.

At the conclusion of the 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

December 14, 1998. At the request of the parties, the deadline for filing proposed recommended orders was extended to January 7, 1999. On January 4, 1999, the Petitioner filed a timely Proposed Recommended Order containing proposed findings of fact and conclusions of law. As of the date of this Recommended Order,

there has been no proposed recommended order filed on behalf of the Respondent.

FINDINGS OF FACT

1. On April 24, 1998, the Petitioner took the electrical engineering licensure exam. By means of an Examination Grade report dated July 30, 1998, the Petitioner was advised that his examination had received a failing score. The Petitioner went through the examination review process. Following that process, the Petitioner contended that he was entitled to a higher score on each of three examination items. The examination items at issue are numbers 291, 294, and 295.

2. The Petitioner's response to item number 291 was assigned a grade of 4. If graded correctly, the Petitioner's response to item number 291 would have credited him with correct answers for parts a, b, and c, and with a partially correct, but incomplete, answer to part d of that item. Under the scoring plan for item number 291, the Petitioner is entitled to a score of 6 on his response to item number 291.

3. The Petitioner's response to item number 294 was assigned a grade of 6. If graded correctly, the Petitioner's response to item number 294 would have credited him with correct answers to all parts of that item. Under the scoring plan for item number 294, the Petitioner is entitled to a score of 10 on his response to item number 294.

4. The Petitioner's response to item number 295 was assigned a grade of 2. If graded correctly, the Petitioner's response to item number 295 would have credited him with correct

   answers to all parts of that item. Under the scoring plan for item number 295, the Petitioner is entitled to a score of 10 on his response to item number 295.

5. If the Petitioner's responses to items number 291, 294, and 295 had been correctly graded, he would have received a total of 14 more points than he was given credit for.

   CONCLUSIONS OF LAW

   
   

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

7. In a case of this nature, the Petitioner bears the burden of proving 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. 3d DCA 1986); Department of Transportation v. J. W. C. Company, 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).

8. The Petitioner has shown by a preponderance of the evidence that his responses to items number 291, 294, and 295 were incorrectly graded, and that he is entitled to have his total grade on the examination increased by 14 points.

RECOMMENDATION

Based on all of the foregoing it is recommended that a Final Order be entered in this case concluding that the Petitioner is

entitled to a grade of 6 points for his response to item

number 291, is entitled to a grade of 10 points for his response to item number 294, and is entitled to a grade of 10 points for his response to item number 295, and recalculating the Petitioner's total grade on the examination on the basis of such conclusions.

DONE AND ORDERED this 20th day of January, 1999, in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

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 20th day of January, 1999.

ENDNOTE

1/ The style of this proceeding has been changed to correctly identify the Respondent agency.

COPIES FURNISHED:

James L. Mako 7646 Texas Trail

Boca Raton, Florida 33487

Natalie A. Lowe, Esquire

Board of Professional Engineers 1208 Hays Street

Tallahassee, Florida 32301

Dennis Barton, Executive Director Board of Professional Engineers 1208 Hays Street

Tallahassee, Florida 32301

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: 98-004463

Orders for Case No: 98-004463