STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEONIDAS B. SEARS, )

)

Petitioner, )

)

vs. ) Case No. 01-0106

)

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, BUREAU ) OF TESTING, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was held in the above-styled case on February 20, 2001, by Don W. Davis, an Administrative Law Judge of the Division of Administrative Hearings, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Leonidas B. Sears, III, pro se

256 Clarkdell Drive Stockbridge, Georgia 30281

For Respondent: Luke Sherlock, Legal Intern

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2022 STATEMENT OF THE ISSUE

The issue in this proceeding is whether Petitioner was properly graded on his exam for licensure as a professional surveyor.

PRELIMINARY STATEMENT

By letter to Respondent dated October 19, 2000, Petitioner requested formal administrative proceedings of Respondent with regard to Respondent's award of a failing grade to Petitioner on the April 13, 2000, professional surveyor's examination.

Respondent referred the matter to the Division of Administrative Hearings on January 8, 2001, for conduct of formal administrative proceedings.

At the hearing, Petitioner testified on his own behalf and presented one exhibit. Respondent presented testimony of two witnesses and seven exhibits.

A Transcript of the hearing was filed with the Division of Administrative Hearings on March 20, 2001. Both parties filed Proposed Recommended Orders (or post-hearing submissions) which have been reviewed and utilized in the preparation of this Recommended Order.

FINDINGS OF FACT

1. On April 13, 2001, Petitioner took the Professional Surveyors and Mappers Examination. He received a score of 68 on the Florida Jurisdictional Essay portion of the exam. A score of 70 on the Essay portion is required to pass.

2. Petitioner challenged items 3, 4, 6, 7, 9, 13, and 14 on the examination. Additionally he claimed that the award of points and grading weights used to grade the exam was different than the weight percentages reflected in the candidate information booklet.

3. Petitioner received 6 of the 8 available points for item 3; 3 of the 5 available points for item 4; 0 of the 10 available points for item 6; 6 of the 10 available points for item 7; 4 of the 5 available points for item 9; 9 of the 10 available points for item 13; and 4 of the 8 available points for item 14.

4. Petitioner’s examination was re-scored through a "Third Grader" review process as described below. When petitioner’s exam was re-scored, he did not receive any additional points.

5. As established by testimony of L. Ray Nolting, Respondent's expert exam developer or psychometrician, the Florida Jurisdictional Essay Exam is prepared by a professional surveyor, who also serves on the examination committee. The Essay exam is then worked by two professional surveyors who ensure the Essay meets minimum technical standards and that the grading criteria is appropriate. The Essay is then reviewed by the examination committee (made up of five professional surveyors and one member of the Board who

   is also a professional surveyor) to check the grade sheet and the Essay to ensure that it is an appropriate examination.

6. In the course of grading each exam, photocopies of each candidate's exam booklet are given to two separate graders who are professional surveyors. The graders score each exam blindly (they only know the candidate’s number). Each grader’s score is averaged to reach a final grade for the candidate. If one of the graders awards a passing score and the other grader awards a failing score, the exam receives a third grader review process.

7. The third grader review involves a review by the entire committee (five professional surveyors and one Board member, who is also a professional surveyor). The committee re-grades the exam and comes to a determination as to the final grade for the candidate.

8. Petitioner's claim, that the award of points and grading weights used to grade the exam is not in accordance with standards noticed in the candidate information booklet, is inaccurate. The 60 percent Minimum Technical Standards, 30 percent Principles and Practice, and 10 percent Description and Communications grading percentages, noticed and advertised in the candidate information booklet, is an accurate reflection of the breakdown of percentages used to score the

   14 items in the examination.

9. The Minimum Technical Standards, Principles and Practice, and the Description and Communications are areas of the examination that overlap. Some of the points in one of these areas could count in another area. However, the examination committee reviewed the Essay portion of the test, prior to its administration, to ensure that the grade sheet reflected the 60, 30, and 10 percentages as represented in the candidate information booklet.

10. Kathleen R. Shirah, Respondent's expert in land surveying, currently serves on the examination committee for the Department of Business and Professional Regulation, Bureau of Testing, where she helps prepare and review the Professional Surveyors and Mappers Examinations. She has served in this capacity on the committee for eleven years.

11. Shirah's testimony establishes that the 60, 30, and

    
    

    10 percentages represented in the candidate information booklet are appropriate.

12. Item 3 on the examination required Petitioner to calculate the bearings and distances of Parcel "A." To complete this task, Petitioner had to locate a starting point using the available evidence and procedures of boundary to determine the admissibility of a monument in perpetuating the boundary corner. Application of several criteria was required to determine the admissibility of the monument.

13. The first criteria related to physical characteristics of the monument itself. According to the exam question's factual scenario, the permanent reference monuments for this parcel were marked with a 4 x 4 concrete monument, bearing a cap with the license number of the original surveyor. The monument at issue did not have a cap or license number on it, nor was there any evidence of cap removal by defacing or damage. Hence, the second criteria, whether the monument had been disturbed or moved came into play. To confuse the issue, the field notes provided to candidates during the exam did not indicate whether the monument had been disturbed or removed.

14. The third criteria required use of public records to prove historical sequence. The original recorded plat given to the candidates contained a description of a monument. The monument at issue was not in agreement with the final plat, adding further evidence that it did not follow the same standards of care as the original survey and was not likely a part of that survey and was not the original monument for this lot. Petitioner concluded on his examination for item 3 that the monument at issue was the original monument for this lot, an incorrect answer.

15. Items 4 and 6 on the exam required Petitioner to supply the direction of a curve. Petitioner was required to

    give a minimum of three elements to describe the curve: the radius, the central angle, and the arc distance. Petitioner’s survey on the examination did not provide the chord and chord bearing or any determination of the direction of the curve for items 4 and 6.

16. Item 7 required Petitioner to offset a fence by three-tenths of a foot in order to determine the encroachment area for purchase by an adjacent property owner. To complete this task, Petitioner was to determine the end points of the fence. The dimensions of the fence were to be shown on Petitioner's exam drawing. Petitioner’s answer for item 7 omits the extent of the encroachment entirely.

17. Item 9 requires the candidate to show the found corners on Lot 5. Petitioner’s answer for item 9 incorrectly shows a concrete monument as the southwest corner of Lot 5.

18. Item 13 requires the candidate to calculate the point of beginning tie for a description of Parcel "A." The correct answer for the point of beginning tie is N 71 20’ 14”

    E. Petitioner’s answer for item 13 incorrectly shows the point of beginning tie as N 71 20’ 14” W.

19. Item 14 requires the candidate to identify and provide a description for the property boundary with parcels adjoining Parcel "A." Petitioner’s answer to Item 14 did not provide a description for the second "call" or adjoining

    boundary along the south side of parcel "A" and did not identify the curve as either the right of way or the lot boundary.

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over this subject matter and the parties to this action pursuant to Section 120.57(1), Florida Statutes.

21. As an applicant, Petitioner has the burden of proving entitlement to licensure as a professional surveyor and mapper. Florida Dept. of Trans. v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981). He must show by a preponderance of the evidence that he was entitled to a passing score on the April 2000 Professional Surveyors and Mappers examination. Petitioner has failed to meet that burden.

RECOMMENDATION

Based upon the findings of fact and conclusions of law, it is

RECOMMENDED: That the Bureau of Testing enter a Final Order confirming Petitioner’s score on the examination and dismissing Petitioner’s challenge.

DONE AND ENTERED this 4th day of April, 2001, in Tallahassee, Leon County, Florida.

___________________________________ DON W. DAVIS

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 4th day of April, 2001.

COPIES FURNISHED:

Leonidas B. Sears, III

256 Clarkdell Drive Stockbridge, Georgia 30281

Luke Sherlock, Legal Intern Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2022

Hardy L. Roberts, III, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2022

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: 01-000106

Orders for Case No: 01-000106