STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHRISTOPHER NATHANIEL LOVETT, )

)

Petitioner, )

)

and )

)

HAROLD D. REGISTER, JR., )

)

Intervenor, )

)

vs. )

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

)

Respondent. )

Case No. 03-4013RP

)

FINAL ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted a telephone hearing in this case on January 29, 2004, on behalf of the Division of Administrative Hearings (DOAH). During the hearing, Petitioner and counsel for Respondent presented oral argument concerning Petitioner's Amended Motion for Summary Order (Motion for Summary Order), a written request to intervene by another unsuccessful examinee (Petition to Intervene), and Respondent's Motion to Dismiss or in the Alternative Motion for Summary Final Order (Motion to Dismiss). The Motion for Summary Order, Petition to Intervene, and Motion to Dismiss were filed respectively on January 9, 15, and 16, 2004.

APPEARANCES

For Petitioner: Christopher N. Lovett, pro se

1206 East Park Circle Tampa, Florida 33604

For Respondent: Paul J. Martin, Esquire

Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

The ultimate issue in this proceeding is whether proposed Florida Administrative Code Rule 61G15-21 is an invalid exercise of delegated legislative authority.

PRELIMINARY STATEMENT

On October 29, 2003, Petitioner filed with DOAH a Petition for Formal Hearing (Petition for Hearing) contesting changes to Florida Administrative Code Rule 61G15-21.004(2) that are proposed by the Florida Board of Professional Engineers (the Board). The parties agreed to several continuances, and an administrative hearing is set for February 9, 2004.

Petitioner and Respondent do not object to the Petition to Intervene. The Petition to Intervene is granted.

The Motion for Summary Order, in relevant part, asks the ALJ to order Respondent to provide the ALJ with raw scores that Petitioner earned on an examination Petitioner took for a license as a professional engineer; to review the raw scores;

and to determine that "Petitioner has met the . . . requirements to take the P.E. Exam." Motion for Summary Order at 2, para. 4.

The Motion for Summary Order is denied for lack of jurisdiction. For reasons discussed in the Conclusions of Law, the ALJ has no jurisdiction in a rule challenge proceeding conducted pursuant to Section 120.56, Florida Statutes (2003), to determine an applicant's qualification to take an examination for a professional license. The relevant statute limits the ALJ's authority to a determination of whether the proposed rule is an invalid exercise of delegated legislative authority.

The ALJ did not conduct an administrative hearing in this proceeding. The Findings of Fact and Conclusions of Law are based on factual allegations in the Petition for Hearing, undisputed facts, and Petitioner's explanation of his position during the motion hearing conducted by telephone on

January 29, 2004.

FINDINGS OF FACT

1. Florida Administrative Code Rule 61G15-21.004, in relevant part, states:

   1. The criteria for determining the minimum score necessary for passing the Engineering Fundamentals Examination shall be developed through the collective judgment of qualified experts appointed by NCEES to set the raw score that represents the minimum amount of knowledge necessary to pass the examination. The judges shall use a Modified Angoff Method in determining the

      minimally acceptable raw score necessary to pass the Fundamentals of Engineering Examination. Using the above mentioned Modified Angoff Method, the judges will indicate the probability that a minimally knowledgeable Fundamentals of Engineering examinee would answer any specific questions correctly. The probability of a correct response is then assigned to each question. Each judge will then make an estimate of the percentage of minimally knowledgeable examinees who would know the answer to each question. The totals each of the judges is added together and divided by the number of judges to determine the overall estimate of the minimum standards necessary. The minimum number of correct answers required to achieve a passing score will take into account the relative difficulty of each examination through scaling and equating each examination to the base examination.

      The raw score necessary to show competence shall be deemed to be a 70 on a scale of 100.

      
      

   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 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).

      
      

2. The proposed changes to Florida Administrative Code Rule 61G15-21.004, in relevant part, state:

   1. The passing grade for the Engineering Fundamentals Examination is 70 or better. The criteria for determining the minimum score necessary for passing the Engineering Fundamentals Examination shall be developed through the collective judgment of qualified experts appointed by NCEES to set the raw score that represents the minimum amount of knowledge necessary to pass the examination. The judges shall use a Modified Angoff Method in determining the minimally acceptable raw score necessary to pass the Fundamentals of Engineering Examination. Using the above mentioned Modified Angoff Method, the judges will indicate the probability that a minimally knowledgeable Fundamentals of Engineering examinee would answer any specific questions correctly. The probability of a correct response is then assigned to each question. Each judge will then make an estimate of the percentage of minimally knowledgeable examinees who would know the answer to each question. The totals each of the judges is added together and divided by the number of judges to determine the overall estimate of the minimum standards necessary. The minimum number of correct answers required to achieve a passing score will take into account the relative difficulty of each

      examination through scaling and equating each examination to the base examination. The raw score necessary to show competence shall be deemed to be a 70 on a scale of 100.

      
      

   2. The passing grade for the Principles and Practice Examination is 70 or better. 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 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).

      
      

3. Petitioner resides in Tampa, Florida. On April 11, 2003, Petitioner took a national examination that Petitioner

   must pass to be licensed by the state as a professional engineer.

4. On July 1, 2003, Petitioner received a letter from the Board advising Petitioner that he had received a failing grade on the examination. On July 2, 2003, Petitioner unsuccessfully requested the raw scores on his examination from a representative of the National Council of Examiners for Engineering and Surveying (NCEES). The NCEES is the national testing entity that conducts examinations and determines scores for the professional engineer examination required by the state.

5. On July 9, 2003, Petitioner submitted a formal request to the Board for all of the raw scores related to Petitioner "and all past P.E. Exams that the Petitioner had taken."

   A representative of the Board denied Petitioner's request explaining that the raw scores are kept by the NCEES and "it is not their policy to release them." The Board's representative stated that the Board was in the process of adopting new rules "that were in-line with the policies of the NCEES."

6. On July 31, 2003, Petitioner requested the Board to provide Petitioner with any statute or rule that authorized the Board to deny Petitioner's request for raw scores pursuant to Section 119.07(1)(a), Florida Statutes (2003). On the same day, counsel for the Board explained to Petitioner that the Board is not denying the request. The Board is unable to comply with the

   request because the Board does not have physical possession of the raw scores. Petitioner and counsel for Respondent engaged in subsequent discussions that are not material to this proceeding.

7. On August 6, 2003, Petitioner requested counsel for Respondent to provide Petitioner with copies of the proposed rule changes that the Board intended to consider on August 8, 2003. On August 27, 2003, Petitioner filed a petition with the Board challenging existing Florida Administrative Code Rule 61G15-21.004. The petition alleged that parts of the existing rule are invalid.

8. Petitioner did not file a challenge to the existing rule with DOAH. The Petition for Hearing states that Petitioner is filing the Petition for Hearing pursuant to Subsections 120.56(1) and (3)(b), Florida Statutes (2003). However, the statement of how Petitioner's substantial interests are affected is limited to the proposed changes to the existing rule.

9. During the hearing conducted on January 29, 2004, Petitioner explained that he does not assert that the existing rule is invalid. Rather, Petitioner argues that the Board deviates from the existing rule by not providing examinees with copies of their raw scores and by failing to use raw scores in the determination of whether an applicant achieved a passing grade on the exam.

10. Petitioner further argues that the existing rule benefits Petitioner by purportedly requiring the Board to use raw scores in the determination of passing grades. The elimination of that requirement in the proposed rule arguably will adversely affect Petitioner's substantial interests.

11. The Petition for Hearing requests several forms of relief. The Petition for Hearing seeks an order granting Petitioner access to raw scores, a determination that Petitioner has met the minimum standards required under the existing rule, and an order that the Board grant a license to Petitioner. The Petition for Hearing does not request an order determining that the proposed rule changes constitute an invalid exercise of delegated legislative authority.

    CONCLUSIONS OF LAW

    
    

12. DOAH has jurisdiction over the parties. § 120.56, Fla. Stat. (2003). However, DOAH does not have subject matter jurisdiction to grant the relief requested in the Petition for Hearing.

13. Section 120.56, Florida Statutes (2003), limits DOAH's authority is this proceeding to a determination of whether the proposed rule changes are an invalid exercise of delegated legislative authority. Section 120.56, Florida Statutes (2003), does not authorize the ALJ to grant the relief requested in the Petition for Hearing. The Petition for Hearing does not request

    the relief authorized in Section 120.56, Florida Statutes (2003).

14. It is undisputed that Petitioner took a national examination approved by the Board and certified by the Department of Business and Professional Regulation (the Department) in accordance with the requirements of Section 455.217(1)(d), Florida Statutes (2003). National examinations approved and administered pursuant to Section 455.217(1)(d), Florida Statutes (2003) (national examinations), including the examination taken by Petitioner, are expressly exempt from the mandate in Section 455.217(3), Florida Statutes, which requires the Department to provide procedures for applicants to review their examination questions, answers, papers, grades, and grading keys.

ORDER

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

ORDERED that this case is dismissed with prejudice for lack of jurisdiction. The administrative hearing scheduled for February 9, 2004, is cancelled.

DONE AND ORDERED this 5th day of February, 2004, in Tallahassee, Leon County, Florida.

S

DANIEL MANRY

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 5th day of February, 2004.

COPIES FURNISHED:

Nancy P. Campiglia, Esquire Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-2202

Christopher N. Lovett 1206 East Park Circle Tampa, Florida 33604

Paul J. Martin, Esquire Office of the Attorney General The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Harold D. Register, Jr.

303 Trice Lane

Crawfordville, Florida 32327

Douglas Sunshine, Esquire

Florida Engineers Management Corporation 2507 Callaway Road, Suite 200

Tallahassee, Florida 32303

Natalie A. Lowe, Executive Director Board of Professional Engineers Department of Business and

Professional Regulation 2507 Callaway Road

Tallahassee, Florida 32303-5267

Diane Carr, Secretary Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Scott Boyd, Acting Executive Director and General Counsel

Joint Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32399-1300

Liz Cloud, Chief

Bureau of Administrative Code The Elliott Building, Room 201 Tallahassee, Florida 32399-0250

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original Notice of Appeal with the agency clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 03-004013RP

Orders for Case No: 03-004013RP