STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHRISTINE FRANKLIN, )

)

Petitioner, )

)

vs. ) Case No. 01-0100

) FLORIDA ENGINEERS MANAGEMENT ) CORPORATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in this case in accordance with Section 120.57(1), Florida Statutes, on March 6, 2001, by video teleconference at sites in Fort Lauderdale and Tallahassee, Florida, before Stuart M. Lerner, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Christine Franklin, pro se

4285 Pine Ridge Court Weston, Florida 33331

For Respondent: Douglas Sunshine, Esquire

Florida Engineers Management Corporation 1308 Hays Street

Tallahassee, Florida 32301 STATEMENT OF THE ISSUE

Whether Petitioner is entitled to additional credit for her solution to Problem 120 on the Principles and Practice of

Engineering portion of the engineering licensure examination administered on April 14, 2000, by the National Council of Examiners for Engineers and Surveyors.

PRELIMINARY STATEMENT

By letter dated December 15, 2000, to the Florida Board of Professional Engineers (Board), Petitioner requested a "formal hearing" to contest the failing score (68) that she had received on the April 14, 2000, Principles and Practice of Engineering portion of the engineering licensure examination administered by the National Council of Examiners for Engineers and Surveyors.

In her letter, Respondent stated that she was specifically challenging the score she received on Problem 120, claiming she should have received at least eight points (out of a possible ten) for her solution to this problem.

On January 9, 2001, the Board referred the matter to the Division of Administrative Hearings (Division) for the "assign[ment of] an Administrative Law Judge to conduct a hearing pursuant to Section 120.57(1), Florida Statutes."

As noted above, the hearing was held on March 6, 2001. At the hearing, Petitioner testified on her own behalf, and Frank Hutchinson, P.E., testified (as an expert) on behalf of Respondent. No other testimony was presented. In addition to Petitioner's and Mr. Hutchinson's testimony, a total of ten

exhibits (Petitioner's Exhibit 1 and Respondent's Exhibits 1 through 9) were offered and received into evidence.

At the conclusion of the evidentiary portion of the hearing, the undersigned announced, on the record, that post- hearing submittals had to be filed no later than ten days following the date of the filing of the transcript of the hearing. The hearing Transcript (consisting of one volume) was filed on March 30, 2001.

Petitioner and Respondent timely filed their post-hearing submittals on March 16, 2001, and April 4, 2001, respectively. These post-hearing submittals have been carefully considered by the undersigned.

FINDINGS OF FACT

Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made:

1. On April 14, 2000, as part of her effort to obtain a Florida engineering license, Petitioner sat for the Principles and Practice of Engineering Examination (Examination). This is a national examination developed and administered by the National Council of Examiners for Engineers and Surveyors (NCEES). Petitioner chose to be tested in civil engineering.

2. Petitioner received a raw score of 46 on the Examination. For the civil engineering specialization, a raw

   score of 46 converts to a score of 68. To pass the Examination, a converted score of 70 is needed.

3. Petitioner formally requested that her solution to Problem 120 on the Examination be rescored. Petitioner's written request was referred to the NCEES.

4. The NCEES's rescoring of Petitioner's solution to Problem 120 resulted in her receiving no additional points.

5. The Board received the NCEES's rescoring results on or about December 5, 2000.

6. After receiving a letter from Petitioner (dated December 14, 2000) requesting a "formal hearing," the Board referred the matter to the Division.

7. Problem 120 was worth ten raw points.

   
   

8. Petitioner received six raw points for her solution to Problem 120.

9. In her solution to Problem 120, Petitioner failed to properly take into consideration the height of the water table, did not compute the factor of safety for load-bearing capacity in the manner required, and made an arithmetic mistake. Therefore, in accordance with the requirements and guidelines of the NCEES's scoring plan for this problem, the highest raw score that she could have received for her solution to this problem was a six, which is the score she received.

10. In rescoring Petitioner's solution to this problem, the NCEES rescorer made the following "comments":

    The examinee made three errors. The solution approved by the Civil Engineering Exam committee called for a correction in requirement (a) for the mid height water table. The examinee ignored this correction. A two point grade reduction is called for. The examinee made a numerical error in evaluating the bearing capacity equation. This error called for a one point grade reduction. In evaluating the factor of safety the examinee added an erroneous load factor. A two point grade reduction is called for.

    
    

    With a total of five grade points lost a final grade of six is called for.

    
    

    SCORER'S RECOMMENDATION:

    
    

    Recommended score = six

    
    

    There has been no showing that the rescorer's analysis was in

    
    

    any way flawed.

    
    

    CONCLUSIONS OF LAW

    
    

11. A person seeking to become licensed by the Department of Business and Professional Regulation (Department) to practice engineering in the State of Florida must take and pass a licensure examination (provided that person is not entitled to licensure by endorsement). Sections 471.013 and 471.015, Florida Statutes.

12. The required examination is described in the Board's Rules 61G15-21.001 and 61G15-21.002, Florida Administrative Code, which provide, in pertinent part, as follows:

    61G15-21.001 Written Examination Designated; General Requirements.

    
    

    1. The Florida Board of [Professional] Engineers hereby determines that a written examination shall be given and passed prior to any applicant receiving a license to practice as a professional engineer . . . .

The examination shall be provided by the National Council of Examiners for Engineers and Surveyors (NCEES). 1/ The examination consists of two parts, each of eight hours. Candidates are permitted to bring certain reference materials, slide rules and certain calculators. A list of approved reference materials and calculators will be provided to all candidates prior to each examination. All materials including pens and pencils are to be furnished by the applicant. National examination security requirements as set forth by the NCEES shall be followed throughout the administration of the examination. . . .

61G15-21.002 Areas of Competency and Grading Criteria.

1. The Engineering Fundamentals Examination shall include all questions and problems on subjects normally connected with the basic fundamentals of engineering education. The topics which will usually be treated in this section are as follows: mathematics, mathematical modeling of engineering systems, nucleonics and wave phenomena, chemistry, statistics, dynamics, mechanics of materials, fluid mechanics, thermodynamics/heat transfer, computer programming, electrical circuits, statics, structure of matter, engineering mechanics, electronics and electrical machinery.

   
   

2. Part two of the examination shall be based on Professional Practice and Principles and shall be devoted primarily to the field of the applicant's finding solutions to problems designed to test the applicant's ability to apply acceptable engineering practice to problems which are representative of his discipline.

   Applicants for registration must select one of the listed specializations in which to be examined. The Board may also authorize examinations in other engineering disciplines when the Board determines that such disciplines warrant the giving of a separate examination in terms of cost effectiveness and acceptability in the profession of engineering.

   
   

3. In Part Two of the examination the applicant will usually be required to solve from seven to ten problems which the applicant may choose from approximately twenty problems drawn from a test pattern generally set forth as follows: . . . .

1. Civil/Sanitary -- Highway, Structural, Sanitary Planning, Fluids, Soils, Economics, Water Control and Resources, Treatment Facility Design, Fluid Flow Hydraulics, Planning Analysis, System Design, Chemical- Bio Problems, Materials Sections, and Economics. . . .

   
   

   13. The Board's Rules 61G15-21.003 and 61G15-21.004, Florida Administrative Code, address the grading of the licensure examination. These rules provide, in pertinent part, as follows:

   61G15-21.003 Grading Criteria for the Essay Portion of Examination.

   
   

   1. Insofar as the essay portion of the examination is not machine graded the Board

      deems it necessary to set forth the following guidelines upon which grades for the essay portion shall be based. Grades on the essay portion of the examination will be based upon the application of good engineering judgment, the selection and evaluation of pertinent information and the demonstration of the ability to make reasonable assumptions when necessary.

      Answers may vary due to assumptions made. Partial credit will normally be given if correct fundamental engineering principles are used, even though the answer may be incorrect. All grading will be done by an expert committee provided by the national testing service supplying the examination. 2/

      
      

   2. An applicant must follow all pertinent instructions on the examination booklet and the solution pamphlet. The applicant shall indicate which problems he has solved and is submitting for credit in the designated boxes on the front cover of the solution pamphlet. If an applicant fails to indicate which problems he is submitting for credit in the designated boxes, only the first four problems worked in said pamphlet shall be graded.

61G15-21.004 Passing Grade. . . .

(2) A passing grade on Part Two of the examination is defined as a grade of 70 or better. The grades are determined by a group of knowledgeable professional engineers, who are familiar with engineering practice and with what is required for an applicable engineering practice and with what is required for an applicable engineering task. These professional engineers will establish a minimum passing score on each individual test item (i.e., examination problem). An Item Specific Scoring Plan (ISSP) will be prepared for each examination item based upon the NCEES standard scoring plan outline form. An ISSP

will be developed by persons who are familiar with each discipline including the item author, the item scorer, and other NCEES experts. On a scale of 0-10, six (6) will be a minimum passing standard and scores between six (6) and ten (10) will be considered to be passing scores for each examination item. A score of five (5) or lower will be considered an unsatisfactory score for that item and the examinee will be considered to have failed that item. To pass, an examinee must average six (6) or greater on his/her choice of eight (8) exam items, that is, the raw score must be forty- eight (48) or greater based on a scale of eighty (80). This raw score is then converted to a base 100 on which, as is noted above, a passing grade will be seventy (70).

1. The Board's Rule 61G15-21.006, Florida Administrative Code, provides that "[e]xam review procedures are governed by rule 61-11.017, F.A.C." and that "[a]ll reviews of answers, questions, papers, grades, and grading key shall be at a mutually convenient time and subject to national testing security requirements in order to insure the integrity of the examination."

2. Rule 61-11.017, Florida Administrative Code, is a Department rule which provides, in pertinent part, that "[r]eview of examinations developed by or for a national council, association, society (herein after referred as national organization) shall be conducted in accordance with national examination security guidelines."

3. In the instant case, after receiving a failing score on the Principles and Practice of Engineering portion of the NCEES-administered and graded engineering licensure examination and not receiving any additional points upon subsequent review and rescoring, Petitioner requested a "formal hearing" to contest her failing score.

4. The Board (acting through the Florida Engineers Management Corporation, a Florida not-for-profit corporation created pursuant to Section 471.038, Florida Statutes, "to provide administrative, investigative, and prosecutorial services" to the Board) granted Petitioner's request for a hearing and referred the matter to the Division for hearing.

5. In those instances where a State of Florida licensing board or agency is empowered to alter a candidate's failing examination score, the candidate is entitled to a hearing, pursuant to Chapter 120, Florida Statutes, to contest his or her failing score. At the hearing, the candidate bears the burden of establishing, by a preponderance of the evidence, that his or her failing score was the product of arbitrary or otherwise improper or erroneous grading. See Harac v. Department of Professional Regulation, Board of Architecture, 484 So. 2d 1333,

   1338 (Fla. 3d DCA 1986)("Ordinarily one who fails a licensure examination would shoulder a heavy burden in proving that a subjective evaluation by an expert is arbitrary."); Florida

   Department of Health and Rehabilitative Services v. Career

   
   

   Service Commission, 289 So. 2d 412, 414 (Fla. 4th

   
   

   DCA 1974)("[T]he burden of proof is on the party asserting the affirmative on an issue before an administrative

   tribunal. . . . 'As a general rule the comparative degree of proof by which a case must be established is the same before an administrative tribunal as in a judicial proceeding--that is,

   [a] preponderance of the evidence. It is not satisfied by proof creating an equipoise, but it does not require proof beyond a reasonable doubt.'"); and Section 120.57(1)(j), Florida Statutes ("Findings of fact shall be based upon a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute, and shall be based exclusively on the evidence of record and on matters officially recognized.").

6. Petitioner failed to submit such proof in the instant case.

7. According to Petitioner, the two-point deduction that was made for the manner in which she evaluated the factor of safety for load-bearing capacity in her solution to Problem 120 was unwarranted and she should have received a raw score of eight, instead of six, for her solution to the problem (which would have given her a passing score on the Examination).

8. In support of her allegation, Petitioner presented her own testimony (which she was free to do notwithstanding her interest in the outcome of the case). See Martuccio v. Department of Professional Regulation, 622 So. 2d 607, 609-10 (Fla. 1st DCA 1993).

9. Respondent countered Petitioner's testimony with the testimony of an independent expert witness, Frank Hutchinson, P.E., a knowledgeable Florida-licensed engineer with considerable engineering experience and impressive credentials.

10. Having carefully reviewed Problem 120, Petitioner's solution to the problem, and the requirements and guidelines of the NCEES's scoring plan for the problem, the undersigned agrees with Mr. Hutchinson that Petitioner failed to calculate the factor of safety for load-bearing capacity in the manner required by the problem and that therefore the two-point deduction about which Petitioner complains was justified.

11. Moreover, even if Petitioner had persuaded the undersigned that she should have received a higher score from the NCEES for her solution to Problem 120, the undersigned would still not recommend that the Board grant Petitioner the relief she is seeking in this case. This is because the Examination is "an examination developed by or for a national board, council, association, or society," within the meaning of the Department's Rule 61-11.012(1), Florida Administrative Code, and, pursuant to

    that rule provision, the Board must "accept the development and grading of such [an] examination without modification." See also Department Rule 61-11.010(1)(a), Florida Administrative Code ("National Examinations shall be graded solely and exclusively by the National examination provider or its designee. National examinations shall include those developed by or for national boards, councils, associations or societies."); and Board Rule 61G15-21.003(1), Florida Administrative Code ("All grading will be done by an expert committee provided by the national testing service supplying the examination.").

12. In view of the foregoing, Petitioner's challenge to the score she received from the NCEES for her solution to Problems 120 of the Principles and Practice of Engineering portion of the April 14, 2000, engineering licensure examination should be rejected.

    RECOMMENDATION

    
    

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

    RECOMMENDED that a final order be entered rejecting Petitioner's challenge to the failing score she received from the NCEES on the Principles and Practice of Engineering portion of the April 14, 2000, engineering licensure examination.

    DONE AND ENTERED this 16th day of April, 2001, in Tallahassee, Leon County, Florida.

    
    

    STUART M. LERNER

    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 16th day of April, 2001.

    
    

    ENDNOTES

    
    

    1/ A licensing board within the Department of Business and Professional Regulation, such as the Board of Professional Engineers, is authorized by Section 455.217(1)(d), Florida Statutes, to "approve by rule the use of any national examination which the department has certified as meeting requirements of national examinations and generally accepted testing standards pursuant to department rules." A "national examination," as that term is used in Section 455.217, Florida Statutes, is defined in Rule 61-11.015, Florida Administrative Code, as follows:

    
    

    1. . . . . To ensure compliance, the following definition of a national examination shall be applied when using a national examination.

       
       

    2. A national examination is an examination developed by or for a national professional association, board, council or society (hereinafter referred to as organization) and administered for the purpose of assessing entry level skills necessary to protect the health, safety and welfare of the public from incompetent practice.

       
       

       1. The purpose of the examination shall be to establish entry level standards of practice that shall be common to all practitioners.

          
          

       2. The practice of the profession at the national level must be defined through an occupational survey with a representative sample of all practitioners and professional practices.

          
          

       3. The examination for licensure must assess the scope of practice and the entry skills defined by the national occupational survey.

          
          

    3. The national organization must be generally recognized by practitioners across the nation in the form of representatives from the State Boards or shall have membership representing a substantial number of the nation's practitioners who have been licensed through the national organization examination.

       
       

    4. The national organization shall be the responsible body for overseeing the development and scoring of the national examination.

       
       

    5. The national organization shall provide security guidelines for the development and grading of the national examination and shall oversee the enforcement of these guidelines.

2/ Pursuant to the Department's Rule 61-11.010(1)(a), Florida Administrative Code, "National Examinations shall be graded solely and exclusively by the National examination provider or its designee."

COPIES FURNISHED:

Christine Franklin 4285 Pine Ridge Court Weston, Florida 33331

Douglas Sunshine, Esquire

Florida Engineers Management Corporation 1208 Hays Street

Tallahassee, Florida 32301

Natalie A. Lowe, Executive Director Florida Engineers Management Corporation 1208 Hays Street

Tallahassee, Florida 32301

Hardy L. Roberts III, General Counsel

Department of Business and Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2202

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: 01-000100

Orders for Case No: 01-000100