STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DENNIS VANN, )

)

Petitioner, )

)

vs. ) Case No. 99-4776

)

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, FLORIDA ) ENGINEERS MANAGEMENT CORPORATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held by videoconference between Tallahassee and Tampa, Florida on March 3, 2000, before Carolyn S. Holifield, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Dennis Vann

Post Office Box 23054 Tampa, Florida 33623

For Respondent: William H. Hollimon, Esquire

Ausley & McMullen

227 South Calhoun Street Post Office Box 391

Tallahassee, Florida 32301-1884 STATEMENT OF THE ISSUE

Whether Petitioner is entitled to additional credit for his responses to Question No. 130 of the Principles and Practice of Engineering portion of the engineering licensure examination

administered on April 23, 1999, by the National Council of Examiners for Engineers and Surveyors.

PRELIMINARY STATEMENT

By letter dated November 11, 1999, Petitioner requested a formal hearing to challenge his score on the Principles and Practice of Engineering portion of the engineering licensure examination administered by the National Council of Examiners for Engineering and Surveying. On November 15, 1999, the case was forwarded to the Division of Administrative Hearings where it was assigned and set for hearing as described above.

At hearing, Petitioner testified on his own behalf and presented the expert testimony of Timothy D. Thomas, P.E. Petitioner also had six exhibits received into evidence.

Respondent presented the expert testimony of Joseph Alan Lane, P.E., and had eleven exhibits received into evidence.

A Transcript of the proceeding was filed with the Division of Administrative Hearings on March 19, 2000. Both parties filed proposed findings of fact and conclusion of laws.

FINDINGS OF FACT

1. Petitioner, Dennis Vann (Petitioner), is an applicant for licensure as a professional engineer in the State of Florida.

2. On April 23, 1999, Petitioner sat for the Principles and Practice Engineering Examination portion of the engineer licensure examinations. This is a national examination

   developed, controlled, and administered by the National Council of Examiners for Engineering and Surveying (NCEES).

3. Petitioner received a raw score of 45 on this examination. For the electrical engineering discipline, a raw score of 45 results in a converted score of 67. A minimum converted score of 70 is required to pass this examination. A raw score of 48 results in a converted score of 70. Therefore, Petitioner needs an additional 3 raw score points to earn a passing score on the examination.

4. Petitioner challenged the scoring of Question No. 130 on the examination and formally requested the NCEES to rescore his solutions to the question. The NCEES rescored Question No. 130 and determined that Petitioner was not entitled to any additional points for Question No. 130.

5. For Question No. 130, the maximum score achievable was

1. Petitioner received a score of 4 on that item. The NCEES developed and used an Item Specific Scoring Plan (ISSP) for each examination question. Question No. 130 was scored by the NCEES according to the ISSP for that question.

   1. Question No. 130 contains two subparts, which require the examinee to address four discrete requirements. Petitioner correctly calculated the bus current (requirement 3). However, Petitioner failed to properly calculate the busway loading and determination of adequacy (requirement 1), the bus impedance (requirement 2), and percent voltage drop (requirement 4).

   2. Petitioner's response to Question No. 130 was initially assigned a score of 4. However, if graded correctly, that response would have resulted in a score of 6.

   3. The credible testimony of Respondent's expert was that under the ISSP for Question No. 130, Petitioner is entitled to a score of 6 for his response. With a score of 6 for Question

      No. 130, Petitioner's raw score is increased to 47. A raw score of 47 results in a converted score of 69.

   4. Even with the 2 additional points awarded to Petitioner's response to Question No. 130, his score on the professional engineering licensure examination is still below 70 and is not a passing score.

   5. Question No. 130 provides all the necessary information for an examinee to solve the problem. Moreover, Question No. 130 is properly designed to test an examinee's competence in electrical engineering.

      CONCLUSIONS OF LAW

      
      

   6. The Division of Administrative Hearings has jurisdiction over the parties and of the subject matter of this proceeding. Sections 120.569 and 120.57(1), Florida Statutes.

   7. In this case, Petitioner bears the burden of proving by a preponderance of the evidence that the examination was faulty, that the question on the examination was faulty, that the question was worded arbitrarily or capriciously, that his answers to the questions 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 (Fla. 3d DCA 1986); State ex rel. Glaser v. Pepper,

      155 So. 2d 383 (Fla. 1st DCA 1963); State ex rel. top v. Board of Electrical Examiners for Jacksonville Beach, 101 So. 2d 583 (Fla. 1st DCA 1958).

   8. Petitioner has shown by a preponderance of the evidence that his response to Question No. 130 was graded incorrectly and that he is entitled to have his total grade on the examination increased by 2 points.

RECOMMENDATION

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

RECOMMENDED that a final order be entered concluding that Petitioner is entitled to a score of 6 points for his response to Question No. 130, and recalculating Petitioner's total score on the examination on the basis of that conclusion.

DONE AND ENTERED this 21st day of April, 2000, in Tallahassee, Leon County, Florida.

CAROLYN S. HOLIFIELD

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 21st day of April, 2000.

COPIES FURNISHED:

Dennis Vann

Post Office box 23054 Tampa, Florida 33623

William H. Hollimon, Esquire Ausley & McMullen

227 South Calhoun Street Post Office Box 391

Tallahassee, Florida 32301-1884

Dennis Barton, Executive Director Department of Business and

Professional Regulation

Board of Professional Engineers 1208 Hays Street

Tallahassee, Florida 32301

Natalie A. Lowe, Esquire

Florida Engineers Management Corporation 1208 Hays Street

Tallahassee, Florida

Barbara D. Auger, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399

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: 99-004776

Orders for Case No: 99-004776