STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JONATHAN A. BATISTA,
Petitioner,
vs.
BOARD OF PROFESSIONAL ENGINEERS,
Respondent.
/
Case No. 20-3075RX
FINAL ORDER
Pursuant to sections 120.56(3), 120.569, and 120.57(1), Florida Statutes (2019),1 Administrative Law Judge Cathy M. Sellers, of the Division of Administrative Hearings ("DOAH"), conducted the final hearing in this proceeding on August 21, 24, 31, and September 1, 2020, by Zoom Conference, from locations in Tallahassee and West Palm Beach, Florida, and Greenville, South Carolina.
APPEARANCES
For Petitioner: Jonathan A. Batista, pro se
Apartment 101
8965 Okeechobee Boulevard West Palm Beach, Florida 33411
For Respondent: Robert Antonie Milne, Esquire
Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050
1 All references to Florida Statutes are to the 2019 version.
STATEMENT OF THE ISSUE
The issue in this case is whether Florida Administrative Code Rule 61G15-21.004(2) is an invalid exercise of delegated legislative authority.
PRELIMINARY STATEMENT
On July 10, 2020, Petitioner, Jonathan A. Batista ("Petitioner"), filed a Petition for an Administrative Determination of the Invalidity of Rule 61G15-21.004(2), Florida Administrative Code ("Rule Challenge Petition"),
alleging that rule 61G15-21.004(2) ("Challenged Rule" or "Rule") is an invalid exercise of delegated legislative authority, pursuant to section 120.52(8)(c), (d), (e) and (f), Florida Statutes. Pursuant to the parties' agreement, the final hearing was scheduled for August 21, 2020.
On July 24, 2020, Respondent, Board of Professional Engineers ("Respondent" or "Board"), filed a Motion for Summary Order of Dismissal ("Motion"). Attached to the Motion was a technical change to the Challenged Rule, to reflect that section 455.217(1)(d), Florida Statutes, is the "rulemaking authority" and "law implemented" by the Challenged Rule.
Petitioner filed Petitioner's Response in Opposition to Respondent's Motion for Dismissal on July 27, 2020. The undersigned issued an Order Denying Motion to Dismiss on August 7, 2020.
The final hearing was held on August 21, 24, 31, and September 1, 2020. Petitioner testified on his own behalf and presented the testimony of David Hoot, P.E., and Nigel Grace, P.E. Petitioner's Exhibits 7 through 15, 27, 39,
40, 42, and 55 through 60 were admitted into evidence without objection;
Petitioner's Exhibits 2, 22 through 26, 31, and 46 through 53 were admitted
into evidence over objection; and Petitioner's Exhibits 1, 3 through 6, 17, 18, 44, 45, and 54 were tendered, but not admitted into evidence. Respondent presented the testimony of Zana Raybon; Timothy Miller, P.E.; and Dr.
Michelle Roddenberry, P.E. Respondent's Exhibits 1 through 12 were admitted into evidence without objection.
The six-volume Transcript was filed at DOAH on September 18, 2020. The parties were given until September 28, 2020, to file their proposed final orders. Petitioner timely filed his Proposed Final Order on September 21, 2020, and Respondent timely filed its Proposed Final Order on September 28, 2020. Both Proposed Final Orders have been duly considered in preparing this Final Order.
FINDINGS OF FACT
The Parties
Petitioner is an applicant for licensure as a professional engineer ("P.E.")2 in Florida, and currently works in the discipline of environmental engineering in Florida. His practice focuses primarily on water-related areas within that discipline. Petitioner is not currently licensed as a P.E.
Respondent is a board within the Department of Business and Professional Regulation ("Department"). It is the state agency created pursuant to section 471.007, Florida Statutes, and charged with licensing professional engineers in Florida. Respondent is vested with the authority to adopt rules to implement chapter 471, regarding the regulation of the practice of engineering in Florida, as defined in section 471.005(7). Respondent adopted the Challenged Rule at issue in this proceeding.
Statutory and Rule Background
The engineering profession in Florida is regulated pursuant to chapter 471.
A person may become licensed as a P.E. in Florida by applying for licensure, fulfilling specified educational and experience requirements, and
2 For purposes of this Final Order, the terms "professional engineer" or "P.E." will be used to refer to persons who are licensed engineers under chapter 471, Florida Statutes.
either being endorsed for licensure as provided in sections 471.015(3) and (5), or passing the required licensure examinations. § 471.015, Fla. Stat.
Pursuant to section 471.015, Respondent has adopted Florida Administrative Code Chapter 61G15-20, which codifies, in rule, the requirements for licensure as a P.E. in Florida.
An applicant for licensure must be a graduate of a Board-approved engineering program; have the requisite number of years of engineering experience; and have passed the specified licensure exams. Fla. Admin. Code R. 61G15-20.0010.
Section 455.217(1)(d) authorizes Respondent to adopt, by rule, the use of a national professional licensing examination that the Department has certified as meeting requirements of national examinations and generally accepted testing standards.
To implement section 455.217(1), Respondent has adopted rule 61G15- 21.001, titled "Examination Designated; General Requirements." This rule requires that, unless an applicant qualifies for licensure by endorsement, he or she must pass the National Council of Examiners for Engineering and Surveyors ("NCEES") licensure exam. Part I of the NCEES exam is the Fundamentals of Engineering ("FE") exam, and part II of the NCEES exam is the Principles and Practice Exam ("PP") exam. Respondent has entered into a contract with NCEES to provide the FE and PP exams in Florida.
A person must pass both the FE and PP exams to be licensed as a P.E. in Florida. § 471.015(1), Fla. Stat.
The Challenged Rule states: "[t]he passing grade for Principles and Practice Exam is determined by the National Council of Examiners for Engineering and Surveying, where psychometric statistical methods are used to determine the level of performance that corresponds with minimal competence in the discipline." Fla. Admin. Code R. 61G15-21.004(2). The Challenged Rule is a subsection of rule 61G15-21.004, which is titled
"Passing Grade." The Challenged Rule specifically and exclusively addresses the method for determining the passing grade on the PP exam.
Sections 455.217(1)(d) and 471.013 are cited as the rulemaking authority for the Challenged Rule, and sections 455.217(1)(d) and 471.015(1) are cited as the law implemented by the Challenged Rule.
The term "engineering," as used in section 471.005(7), includes the term "professional engineering," and defines the types of services and creative work that constitutes "engineering."
An "engineer," as defined in section 471.005(5), includes the terms "professional engineer" and "licensed engineer," and means a person who is licensed to engage in the practice of engineering under chapter 471.
By contrast, an "engineer intern," as defined in section 471.005(6), means a person who has graduated from a Board-approved engineering curriculum and has passed the FE exam.
By definition, these are distinct terms. The term "engineer" is used to describe a person licensed as a P.E. under chapter 471, while the term "engineer intern" is used to described a person who may engage in the kinds of activities described within the term "engineering," as defined in section 471.005(7), but who is not licensed as a P.E. in Florida, and, therefore, is not authorized to hold himself or herself out as a licensed engineer in Florida.
The Rule Challenge Petition
The Rule Challenge Petition alleges four grounds under section 120.52(8) for invalidating the Challenged Rule.
Alleged Invalidity of Challenged Rule under Section 120.52(8)(c)
In paragraph 15 of the Rule Challenge Petition, Petitioner asserts that section 455.217(1)(c)—which, at the time the Rule Challenge Petition was filed, was cited as the specific authority for, and law implemented by, the Challenged Rule—did not authorize the Challenged Rule, so that the Challenged Rule enlarged, modified, or contravened the specific provisions of law implemented, pursuant to section 120.52(8)(c).
As a result of Petitioner having filed the Rule Challenge Petition, Respondent discovered that it had not updated its citation of the specific authority for, and law implemented by, the Challenged Rule, when section 455.217(1) was amended and renumbered in 1997, so that section 455.217(1)(c) no longer was the correct citation to the law
implemented by the Challenged Rule. Respondent requested the Department of State, Administrative Code and Register Section ("DOS"), to make a technical, non-substantive change to the Challenged Rule. As authorized by Florida Administrative Code Rule 1-1.010(10), DOS updated the statutory citation to section 471.217(1)(d), which is the correct citation to the law implemented by the Challenged Rule. This technical change nullifies the alleged invalidity ground set forth in paragraph 15 of the Rule Challenge Petition, and Petitioner concedes this.
In paragraph 16 of the Rule Challenge Petition, Petitioner also alleges that the Challenged Rule enlarges, modifies, or contravenes section 455.217(1)(a), because the PP examination does not adequately and reliably measure an applicant's ability to practice the profession regulated by the Department.
However, as discussed below, section 455.217(1)(a) is not cited as a specific provision of law implemented by the Challenged Rule, so cannot form the basis of a challenge to the Rule under section 120.52(8)(c).
Alleged Invalidity of Challenged Rule under Section 120.52(8)(d)
In paragraph 17 of the Rule Challenge Petition, Petitioner alleges that the Challenged Rule is invalid under section 120.52(8)(d) because it is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency.
In support of this alleged invalidity ground, Petitioner asserts that the Challenged Rule is vague because "the level of performance on the PP exam is stated to correspond with minimal competency, yet there are no rules
which provide definitive guidance to NCEES on what constitutes the general areas of competency in regards to engineering practice."3
Petitioner also alleges, in paragraph 19 of the Rule Challenge Petition, that the Challenged Rule is invalid under section 120.52(8)(d) because it equates passage of the PP exam with a 30-year practice experience requirement for licensure by endorsement set forth in section 471.015(5)(b). To this point, Petitioner states: "I can't think of anything more arbitrary than the principles and practice exam equating to near[-]retirement level experience."4
Alleged Invalidity of Challenged Rule under Section 120.52(8)(e)
In paragraph 18 of the Rule Challenge Petition, Petitioner alleges that the Challenged Rule is invalid pursuant to section 120.52(8)(e) because it is arbitrary, for several reasons. Paraphrased, these reasons are: passage of the PP exam does not accurately reflect, or equate to, minimal competence in the discipline; the PP Exam does not accurately evaluate an individual's engineering ability level, but instead evaluates an individual's exam performance compared to average group exam performance; the PP exam does not reliably distinguish between minimal competence and incompetence to practice engineering, as evidenced by the fact that engineers who fail the PP exam still competently perform, and, thus, keep, their engineering jobs; passing the PP exam, by itself, does not certify an individual to competently perform any engineering service or creative work as defined in
3 Section 455.217(1)(b) requires, for each exam developed by the Department or a contracted vendor, that the general areas of competency covered by the exam be specified by rule. The last sentence of that subsection states that the requirements of subsection (b) do not apply to national exams, such as the NCEES PP exam, which are approved and administered pursuant to section 455.217(1)(d). Thus, the law implemented by the Challenged Rule does not require areas of competency to be specified in the Challenged Rule.
4 Because paragraph 19 of the Rule Challenge Petition alleges that the rule is arbitrary, the undersigned considers this paragraph to constitute a challenge to the Challenged Rule under section 120.52(8)(e), rather than under section 120.52(8)(d), as cited in the Rule Challenge Petition, and has addressed this ground in the Conclusions of Law section dealing with that alleged invalidity ground.
section 471.005(7); the PP exam does not reliably determine if an examinee is minimally competent, due to an incorrect reference point; and the PP exam does not reliably distinguish between individuals whose practice of engineering would protect the public health and safety and those whose practice of engineering would constitute a danger to public health and safety.
Alleged Invalidity of Challenged Rule under Section 120.52(8)(f)
In paragraph 20 of the Rule Challenge Petition, Petitioner alleges that the Challenged Rule is invalid pursuant to section 120.52(8)(f) because it imposes regulatory costs on the regulated person, county, or city, which could be reduced by the adoption of less costly alternatives that substantially accomplish the statutory objectives. To this point, Petitioner proposes a state- conducted investigation of an applicant as a substitute for the PP exam, and contends that "there's a premium associated with a national exam. It's also clear that the regulatory cost imposed on me and all future examinees could be substantially reduced if the Board conducted their exam as an investigation and did not incorporate the NCEES exam."
However, as more fully discussed below, this challenge ground is time- barred by section 120.541(1)(g), and, therefore, is not a legally-cognizable basis for invalidating the Challenged Rule in this proceeding.
The Parties' Stipulated Facts
Petitioner is an Engineer Extern, Texas EIT 56990.
Pursuant to section 471.015(1), the Florida Engineers Management Corporation "shall issue a license to any applicant who the Board certifies is qualified to practice engineering and who has passed the [FE] exam and the [PP] exam."
Both the FE exam and the PP exam are created by NCEES, pursuant to section 455.217(1)(d), which states, in pertinent part: "a board . . . may approve by rule the use of any national examination which the [Department of Business and Professional Regulation] has certified as meeting the
requirements of national examinations and generally accepted testing standards pursuant to department rules."
Pursuant to section 471.015(1), Petitioner passed the FE exam on September 3, 2016.
Passing the FE is a prerequisite to take the PP exam.
Petitioner registered to take the NCEES computer-based PP exam for environmental engineering on April 22, 2020. He paid the $350 exam fee and additional monies for test preparation material, and spent at least 100 hours preparing for the exam. He was notified, on April 6, 2020, by Pearson Vue, the test center company, that the exam was cancelled due to the Covid-19 pandemic.
On April 7, 2020, Petitioner registered to take the exam on July 15, 2020, which was the earliest available date for taking the exam in his local area.
On April 9, 2020, Petitioner canceled his registration for the July 15, 2020, exam and decided to apply for licensure as a P.E. without passing the PP exam.
Pursuant to section 471.015(2)(a)1., on May 18, 2020, Petitioner filed his application for licensure with the Board. The application provides information stating that Petitioner meets the requirements of section 471.013(1)(a)1., and has at least four years of active engineering experience of a character indicating competence to be in responsible charge.
In compliance with the education requirements of section 471.013(1)(a)1., Petitioner earned a Bachelor of Science degree in Chemical Engineering from the University of Florida, which is accredited by ABET. Petitioner provided an official transcript to the Board for verification purposes.
In compliance with rule 61G15-20.002, Petitioner states in his application that he has at least four years of acceptable engineering practice, consisting of one year of experience equivalent through his Master of
Engineering degree from the University of Texas at Austin, an ABET- accredited institution; and over three years of professional engineering work verified by licensed engineers.
According to rule 61G15-20.002, an applicant must list three current personal references who are professional engineers. Thirteen licensed engineers submitted documentation to the Board regarding Petitioner's type of qualifying experience, level of engineering competency, and professional integrity. All references circled "yes" to the question "would you employ the applicant in a position of trust?" Two additional references in the engineering industry also provided their opinion on Petitioner's integrity and competence.
On June 1, 2020, Petitioner received notification from the Board that his Florida 0901 1031-P.E. Endorsement application was incomplete. Petitioner addressed all items listed in a timely fashion to participate in the June 10, 2020, Board meeting.
The Board stated during an informal hearing on June 10, 2020, that Petitioner would not be granted P.E. licensure due to not having passed the PP Exam.
Petitioner is substantially affected by the Challenged Rule because it disqualifies him from becoming a licensed engineer in Florida without passing the PP exam.
Findings of Fact Based on Evidence Presented at the Final Hearing
A. Findings Regarding the Evidence Presented in Petitioner's Case Testimony of Witnesses Hoot and Grace
David Hoot and Nigel Grace, both of whom are licensed professional engineers, testified regarding Petitioner's abilities and skills as a practicing engineer.
Neither Hoot nor Grace was qualified as an expert in the field of psychometrics or related topics. Therefore, any opinions regarding these subject matters to which they testified at the hearing have been treated as personal opinions, rather than expert opinions.
Hoot characterized Petitioner as a good, diligent young engineer, and described Petitioner's role in various projects on which they worked together. Based on his work with Petitioner, it was Hoot's personal opinion that Petitioner possesses the integrity and competence to work as a licensed engineer who would serve the public health and safety.
Hoot testified that when he took the PP exam approximately 38 years ago, it was a free response exam. He stated that he was "not exactly sure" that a multiple-choice exam captures an examinee's ability to apply reason and judgment, but he acknowledged that he does not know how the PP exam currently is developed. He offered his personal opinion that it was possible for a competent engineer to fail the PP exam.
Hoot also offered his personal view that engineering licensure constitutes a standard of care; however, he did not think anything provides a guarantee of competence. It was his personal view that experience tended to make one more competent.
He also offered his personal view that as an engineer gains more experience and becomes more specialized, it is understandable that he or she would not score as well as an engineer who is gearing up toward the four-year experience goal which enables them to apply for licensure as a P.E. As Hoot put it, "life happens. You have children involved. You move jobs. I think you
. . . maybe have less time to study. . . you get farther away from the study habits of . . . learning to be able to take tests."
Grace, who is employed as a P.E. with Brown and Caldwell ("B&C"), a large U.S. engineering firm, testified regarding Petitioner's work experience while he was employed by B&C. Petitioner's experience included working on drinking water projects, utilities, upgrading process equipment, site evaluations, bench scale testing, and other projects.
Based on Grace's work with Petitioner, it was his personal opinion that Petitioner possesses the integrity and competence to work as a licensed engineer who would serve the public health and safety.
Grace took the PP exam approximately 28 years ago, and at the time, a major portion of the exam consisted of long-form written exam questions that provided the opportunity for examinees to provide free response answers and earn partial credit for partially-correct answers. He testified that the exam also had a multiple-choice component. Grace testified that, "based on instinct," he knows well-designed multiple-choice questions can provide the same insight into an examinee's decision-making judgment as long-form questions.
Grace's personal view is that passing the PP exam does not guarantee competence, and it is possible for an engineer to be competent in some engineering disciplines but not others.
Grace also agreed that it was logical that an examinee with approximately four years' experience would perform better on the PP exam because he or she would have better-honed test-taking skills and be fresher in some areas tested on the exam. By contrast, engineers who have practiced longer have more experience, but often have become specialized and further removed from the test-taking environment. Thus, passing a broad-spectrum exam becomes a bigger hurdle for engineers who have practiced longer. Petitioner's Testimony
Petitioner testified on his own behalf at the final hearing.
As discussed above, Petitioner holds a bachelor of science degree in chemical engineering from an ABET-accredited institution, and holds a master of engineering degree from an ABET-accredited institution.
Although Petitioner, through his training as an engineer, is skilled at mathematics and statistics, he is not trained, and does not have any substantial experience, in the field of psychometrics.5
5 As discussed in greater detail below, psychometrics is a specialized field of study that concerns the theory and technique of objective psychological measurement of skills, knowledge, abilities, and educational achievement.
Petitioner acknowledged that he does not have a degree in psychometrics and that he is not trained in, or knowledgeable about, preparing and administering high-stakes professional examinations.
At the time he filed the Rule Challenge Petition, Petitioner had no personal knowledge of the work done by psychometricians; did not know what a "cut score" was; and was not familiar with the Modified Angoff Method, item response theory, the specifics of converting raw scores to scaled scores, or other any psychometric tools and methods employed to prepare and score the PP exam. Petitioner acquired some rudimentary knowledge in a few of these areas in preparing for the final hearing in this proceeding.6
Section 90.701(2), Florida Statutes, prohibits a lay witness from testifying as to an opinion regarding a matter involving specialized knowledge.7
Accordingly, it is determined that Petitioner is not competent to provide an expert opinion regarding psychometrics and related areas, such as item response theory. He was not qualified, tendered, or accepted at the final hearing as an expert in psychometrics or any related areas.
Because Petitioner was not qualified to testify as an expert witness at the final hearing, Petitioner's testimony regarding psychometrics, item response theory, scaled scores, the Modified Angoff Method, high-stakes professional testing, and all other specialized subject matters, consisted of opinion testimony by a lay witness. The only instances in which a lay witness
6 Petitioner does not have any special knowledge, formal training, education, or experience in the specialized field of psychometrics. His knowledge about these areas was acquired by reading and study in preparation for the final hearing. Because Petitioner lacks special knowledge, experience, training, and education in psychometrics, he is not qualified to testify as an expert in psychometrics or related topics, such as item response theory. See Chavez v. State, 12 So. 3d 199, 205 (Fla 2009)(in determining whether a witness is qualified to render an opinion as an expert in a specialized field, the court must determine whether the witness is adequately qualified to render an opinion based on special knowledge, experience, training, or education).
7 Chesser v. State, 30 So. 3d 625 (Fla. 1st DCA 2010)(it is error for a court to accept opinion testimony of a lay witness in a specialized subject matter area).
may provide opinion testimony are when the lay witness's opinion is based on firsthand knowledge through personal perception.8
As the undersigned explained during the final hearing, rather than excluding Petitioner's lay opinion testimony, she would consider these pertinent evidentiary principles in determining the weight to be afforded Petitioner's lay opinion testimony in this proceeding.
Applying these evidentiary principles, it is determined that Petitioner's testimony regarding psychometrics and related topics, such as item response theory, classical response theory, and high-stakes test reliability and validity, concerned specialized subject matters not within the realm of common knowledge or based on Petitioner's personal perception. Rather, such specialized subject matters required expert witness testimony, pursuant to section 90.702, and as addressed above, Petitioner was not shown to be an expert in any of these specialized subject matters. Because Petitioner's testimony constituted the type of opinion testimony that is not permissible by a lay witness, pursuant to section 90.701, such testimony is not afforded weight in this proceeding.
Petitioner testified that "minimal competence," which is the standard measured on the PP Exam, equates to "competence" as defined in the dictionary—that is, the "sufficient ability for a specific need or requirement."
However, this position ignores that, for purposes of the Challenged Rule, "minimal competence" is a term of art specifically used, in the psychometric measurement context, to describe the level of competence that corresponds to a passing score on the PP exam. As more fully discussed below, the PP exam is developed and scored using psychometric tools and methods.
8 Nat'l Commc'ns. Indus., Inc. v. Tarlini, 367 So. 2d 670, 671 (Fla. 1st DCA 1979)(lay witness testimony regarding a specialized subject matter was not admissible into evidence because the testimony was not regarding a subject matter about which the witness could testify based on common knowledge or his personal perception.)
Petitioner contends that engineering experience is, by itself, a reliable measure of competence, so it is unnecessary to also pass the PP exam. Petitioner testified "the application process and [PP] exam have two entirely different methods to identify the same result: whether an engineer in training is competent enough to become a licensed engineer It is not
logical for two checks of competence to come up with different results. There should be consistency."
In support of this position, Petitioner relies on section 471.015(2)(a), which requires "at least 4 years of active engineering experience of a character indicating competence to be in 'responsible charge' of engineering."
§ 471.015(2)(a), Fla. Stat.
"Responsible charge" is defined in rule 61G15-18.011(1) as the degree of control an engineer is required to maintain over engineering decisions made personally or by others over which the engineer exercises supervisory direction and control authority. An engineer in responsible charge is the "engineer of record," as defined in rule 61G15-30.002(1).
Rule 61G15-30.002(1) defines "engineer of record" as a Florida professional engineer who is in responsible charge.
Thus, an engineer who is qualified, for purposes of being in responsible charge pursuant to section 471.015(2)(a) must, in addition to having the minimum statutory experience, be a licensed P.E. This means that he or she necessarily must have passed the PP examination.
These statutory and rule provisions collectively reinforce the point that for an engineer to demonstrate competence for purposes of holding himself or herself out as an "engineer," as defined in section 471.005(7), he or she must satisfy all three requirements of section 471.015(2)(a)—i.e., education, experience, and passing the licensing exam.9
9 The requirement to meet these three requirements, including the PP exam, is codified in section 471.051(2)(a). Eliminating the exam requirement and relying strictly on education and/or experience for licensure would require the Florida Legislature to amend this statute
Petitioner echoed the testimony of Hoot and Grace that licensure is not a guarantee of competence, and that passing the PP exam does not guarantee minimal competence. To this point, he testified that he does not believe that the PP exam adequately and reliably measures an applicant's ability to practice engineering, and that experience is a better indicator of competence than passing the exam. By way of example, Petitioner described his own experience10—which he characterized as "directly matching" the activities in which a licensed engineer engages—and compared that experience to measuring competence by an exam, which Petitioner characterized as "attempt[ing] to indirectly measure my ability as an engineer." Based on his personal experience, Petitioner contends that experience better demonstrates competence to be licensed as a P.E.; that passing the PP exam does not indicate minimal competence to practice engineering; and that failing the PP exam does not mean that the examinee is not minimally competent. He further testified that examinees who fail the PP exam likely are minimally competent, since the engineering jobs they hold when applying for licensure likely would require that they be minimally competent in order to have been hired.11
to eliminate the exam requirement. The undersigned is not authorized by statute or the Florida Constitution to eliminate the PP exam requirement for licensure under chapter 471.
10 Petitioner's experience, set forth in his P.E. licensure application, was verified by his supervising engineers.
11 Petitioner appears to conflate being determined not "minimally competent" for purposes of passing the PP exam, with "incompetence," which is defined in Florida Administrative Code Rule 61G15-19.001(5) as the "physical or mental incapacity or inability of a professional engineer to perform the duties normally required of the professional engineer." Part of this confusion may be due, in part, to Respondent's response to one of Petitioner's interrogatories asking for a definition of "minimal competence." Rather than directly answering the interrogatory, Respondent referred Petitioner to the definition of "incompetence" for purposes of imposing discipline under Respondent's disciplinary rules—thus causing Petitioner to understandably assume that failing to demonstrate minimal competence through passing the PP exam equates to "incompetence," as defined in rule 61G15-19.001(5). However, the fact that Petitioner has not demonstrated "minimal competence" on the PP exam does not mean that he is incompetent; it simply means that he has not yet passed the PP exam for licensure as a P.E. in Florida. To this point, if failing to demonstrate "minimal competence" by passing the PP exam equated to being incompetence, every person who performs engineering work in
To further illustrate this point, Petitioner noted that the data regarding passage rate of the PP exam shows that examinees having zero years of experience are almost twice as likely to pass the PP exam as examinees having 11 or more years of experience.
However, as Hood and Grace explained, and as further discussed below, engineers having more than four to five years of experience begin to specialize in narrower fields and "life happens," in that personal and professional circumstances render it more difficult to prepare for and take a high-stakes test.
Petitioner also disputed the accuracy of the PP exam preparation and scoring process. In particular, he took issue with the "model law engineer" standard to which the exam is designed. As discussed more extensively below, this standard equates to the competence level of an engineer having four years of engineering experience and who is capable of practicing engineering in a manner that protects the public health and safety.
In particular, Petitioner contends that designing the PP exam to the "model law engineer" standard is unfair to anyone taking the exam that does not have exactly four of years of engineering experience. Notably, however, section 471.015(1), which is the statute implemented by the Challenged Rule, establishes four years as the engineering experience required for licensure as a P.E. Thus, the "model law engineer" standard is rationally related to the statutory minimum experience level for purposes of demonstrating minimum competency to be licensed.
Petitioner also contends that the subject matters tested on the PP exam are unfairly broad, so that engineers who specialize in a particular area within an engineering discipline—such as specializing in water-related areas in environmental engineering—are disadvantaged by being required to take
Florida but has not passed the PP exam would be "incompetent," and, thus, potentially subject to disciplinary action.
an exam that covers a broad range of areas beyond his or her area of specialty. Petitioner further contends that it is irrational to test an examinee on particular areas that are irrelevant to his or her work and/or desired career path.
However, the PP exam for a particular discipline is specifically designed to ensure that a licensed P.E. is competent to practice over a range of specific areas encompassed within that particular discipline. This is because once a person becomes a licensed P.E., he or she may practice engineering within any discipline or specific area within that particular discipline, subject to the professional and ethical requirements to limit practice to the disciplines and areas in which the engineer is actually competent. Thus, the breadth of the PP exam is designed to help ensure minimal competence to practice engineering in a manner that protects the public health and safety.
Petitioner also contends that because the PP exam for some engineering disciplines tests a broader range of areas than the PP exam may test for other disciplines, the exam inconsistently measures minimal competency across the range of engineering disciplines.
However, as discussed in detail below, the subject matters tested on the PP exam for a given discipline are chosen by subject-matter experts who are licensed engineers practicing in that particular engineering discipline, and are deemed, by those subject matter experts, to be most important to test for purposes of measuring competency in that discipline. Thus, while the number of discrete subject matters tested on the PP exams may differ across the various engineering disciplines, this difference is, factually and logically, a function of expert consensus regarding which subject matters need to tested to demonstrate minimal competence.
Petitioner also contends that the Challenged Rule is vague because it does not specifically identify the disciplines, and the areas within each discipline, that are tested on the PP exam.
Respondent has contracted with NCEES to be responsible for preparing, administering, and scoring the PP exams, pursuant to section 455.217(1)(d). NCEES conducts a methodical process, discussed in detail below, to determine the specific disciplines for which to develop a PP exam and the areas to be covered on the PP exam for a discipline. Exam specifications are then developed by subject matter experts within that discipline, and are published by NCEES. These specifications inform prospective examinees regarding the particular areas that will be tested on the PP exam for the discipline, and the number of questions for each specific area that will appear on the exam. Thus, prospective examinees are not left to wonder or guess about which disciplines will be tested; the areas within each discipline that will be tested; or the relative weight that will be assigned to each area tested.12
Although the Challenged Rule does not identify the specific disciplines tested on the PP exam, rule 61G15-21.001(1)(b)—which actually adopts the PP exam as an engineering licensure exam in Florida—states that the PP exam "is given by discipline." Therefore, even if section 455.217(1)(d) required the specific areas of competency to be identified by rule, such areas would have been identified in rule 61G15-21.001(1), rather than in the Challenged Rule.13
12 See Cole Vision v. Dep't of Bus. And Prof'l Reg., 688 So. 2d 404, 410 (Fla. 1st DCA 1997)(a rule is impermissibly vague if it is drafted in terms so vague that men of common intelligence must necessarily guess at its meaning or application.
13 Neither sections 455.217(1)(d) nor 471.015(1) specifically authorize or require Respondent to adopt rules identifying the general areas of competency tested on the PP exam. By contrast, exams developed by the agency pursuant to section 455.217(1)(b) must identify, by rule, the general areas of competency to be tested. Had the Legislature intended for exams authorized under section 455.217(1)(d)—of which the PP exam is an example—to adhere to the same requirement, the statute would have so stated. See Pro-Art Dental Lab, Inc. v. V- Strategic Grp., LLC, 986 So. 2d 1244, 1258 (Fla. 2008)(the specific mention of one thing in a statute implies the exclusion of another).
Furthermore, section 120.54(1)(g) expressly requires a rule to address only one subject. Thus, if the Challenged Rule also addressed the areas of competency to be tested on the PP exam, it would violate section 120.54(1)(g).
Petitioner also asserted, at the final hearing, that Respondent did not certify the PP exam as meeting the requirements of national examinations and generally accepted testing standards pursuant to department rules, as required by section 455.217(1)(d). However, Petitioner did not raise this alleged invalidity basis in the Rule Challenge Petition, so he is foreclosed from raising and litigating it at the final hearing. See § 120.56(1)(b),
Fla. Stat.
Petitioner also testified that, in transitioning from paper-and-pencil PP exams to computer-based exams, NCEES is relying on two different theories—classical test theory and item response theory—and that this reliance does not comport with generally accepted testing standards. However, as discussed above, Petitioner was not qualified as an expert in the specialized area of high-stakes examination preparation and scoring; thus, his testimony constitutes lay opinion regarding this specialized subject matter. He did not present any competent substantial evidence to support his contention that the PP exam does not meet generally accepted testing standards.14
Petitioner also testified that item response theory, which is a psychometric tool used in developing and scoring the PP exam, is an invalid means of determining the competence of an engineer. To this point, Petitioner testified that the "model law engineer" is not a real person, but is instead an imaginary person created by subject matter experts to define what a minimally competent engineer should know. Thus, according to Petitioner,
14 Because Petitioner was not qualified, tendered, or accepted as an expert in these specialized subject matters, and because his testimony on these matters consists of inadmissible lay opinion testimony, this testimony has not been afforded weight. §§ 90.701 and 90.702, Fla. Stat.
the model law engineer standard is the wrong reference point for determining minimal competency to practice engineering.15
Petitioner also testified that the PP exam does not accurately measure ability, which is a latent trait for which an arbitrary measurement scale must be created. He testified that the model law engineer standard is the midpoint of this scale, and that the purpose of the scale is to determine whether examinees fall above or below that midpoint.16 He further contended that the PP exam does not accurately measure ability, because performance on the exam may be influenced by extraneous variables, such as test anxiety.
Petitioner also testified regarding item response theory, which, as previously noted, is a psychometric tool used in developing and scoring high- stakes exams—a subject about which Petitioner had no training in, or knowledge about, until he prepared for the final hearing in this proceeding. Specifically, Petitioner testified that the item characteristic curve is the basic building block of item response theory, and that there are two technical properties of an item characteristic curve: difficulty of the item, and the ability of the item to discriminate between examinees' abilities.
Petitioner testified that another basic principle of item response theory is that the examinee's ability is a variable with respect to the items used to determine it. According to Petitioner, this principle rests on two
15 Petitioner's testimony on this point was based on excerpts from a book titled Item Response Theory and a book titled The End of Average. The Item Response Theory book is a treatise on psychometrics, a highly specialized field about which Petitioner was not qualified to testify as an expert, and which is not susceptible to lay witness opinion testimony. Thus, Petitioner's testimony on these points is not assigned weight. See §§ 90.701 and 90.702, Fla. Stat. Additionally, excerpts from The End of Average were determined irrelevant, so were not admitted into evidence.
16 As support for this testimony, Petitioner selectively cited and quoted the deposition testimony of Timothy Miller, Respondent's expert on the development and scoring of NCEES's psychometric-based PP exams. The specific context of Miller's deposition testimony was that when an exam item is overexposed, it is subject to drift, which means that the percentage of correct answers for the item increases to the point that the item no longer is a good discriminator. As further discussed below, Petitioner's testimony on this point was directly and persuasively countered by Miller's expert testimony regarding scaled scores and setting the passing score for the PP exam.
conditions: that all items measure the same underlying latent trait, and the values of all item parameters are in a common metric. According to Petitioner, this principle reflects that the item characteristic curve spans the entire ability scale; thus, the practical implication is that a test located anywhere along the ability scale can be used to estimate an examinee's ability, such that an examinee could take a test that is easy or hard, and on average, would score at the same estimated ability level. Petitioner testified that this stands in contrast to classical test theory, which he contends is a better discriminator of examinee ability.17
Petitioner also testified that the psychometric methods used to develop and score the computer-based PP exams are flawed because "difficulty" is subjective and entirely dependent on the individuals developing the PP exam. Thus, according to Petitioner, in scoring a computer-based multiple-choice PP exam, it is impossible to know whether a particular examinee got the answer right due to a reasonable approach in answering the question, or by guessing. Petitioner contends that for this reason, multiple-choice test questions developed using item response theory are not good discriminators of examinees' ability; thus, even if an examinee does not correctly answer enough questions to pass the exam, that does not mean that the examinee is not knowledgeable in that area.18
Petitioner further testified that because difficulty is a subjective parameter, different forms of the PP exam inherently have different levels of difficulty. Thus, according to Petitioner, it is a matter of luck whether an examinee takes a more difficult form or an easier form of the exam. Further to this point, Petitioner testified that because an examinee does not take multiple forms of the exam, but instead takes only one form, the determination of the examinee's ability is solely dependent on a subjective
17 Refer to note 15, supra.
18 Refer to note 15, supra.
parameter—i.e., the difficulty of the test questions as determined by subject matter experts. Petitioner contends that, as a result, the PP exam does not accurately measure an examinee's ability, and, therefore, is not a valid exam.19
Petitioner also testified that because statistical indices of reliability and validity are not attributes of an exam, a researcher may select what seems to be an appropriate test for his or her purposes, when, in fact, the selected test does not have any level of reliability or validity. Thus, Petitioner testified, reliability and validity are values that reside in test scoring, not in the test itself. Petitioner testified that validation, in statistics, is the process of accumulating evidence that supports the appropriateness of the inferences that are made of student responses for assessment uses. He testified that validity refers to the degree to which the evidence indicates these interpretations are correct and the manner in which the interpretations are used is appropriate.20
Petitioner testified regarding three types of validity evidence: content, construct, and criterion evidence.21
Specifically, Petitioner testified that content evidence refers to the extent to which an examinee's responses to a given assessment reflect the examinee's knowledge of the content being tested; thus, to the extent an exam inadvertently measures a parameter that is not related to the examinee's knowledge of the content being tested, it is invalid.
19 Refer to note 15, supra.
20 Petitioner's testimony relied on, or was paraphrased from, a document titled The Scoring Rubric Development. Again, because this topic and document address a matter within the specialized fields of psychometrics, high-stakes testing, and test-scoring statistics, which are areas in which Petitioner was not qualified as an expert, and which are not susceptible to lay opinion testimony, pursuant to sections 90.701 and 90.702, Petitioner's testimony relying on this document, including his testimony regarding content, construct, and criterion-related evidence, is not afforded weight.
21 Refer to note 15, supra. This determination regarding the weight afforded Petitioner's testimony applies to paragraphs 94 through 100 herein.
According to Petitioner, the content-related evidence for the PP exam for each discipline is inconsistent, so that the PP exam for a given discipline does not accurately measure minimal competence for that discipline. Petitioner also testified that the weighting of different topics on the PP exam necessarily creates an advantage for engineers who work in areas more heavily weighted on the exam, while creating a disadvantage for engineers who work in areas that are less heavily weighted on the exam. Petitioner also testified that to accurately determine minimal competence in all engineers, the model law engineer standard should be keyed to, and the content tested on the exam should be directed toward all engineers, including those having more than four years of experience.
Petitioner also testified that construct-related evidence consists of external benchmarks, such as results and explanations, of internal evidence of psychological processes, such as reasoning. Petitioner testified that because multiple-choice exams do not provide evidence of an individual's reasoning process, they do not generate construct-related evidence for purposes of determining exam validity. Petitioner testified that free response paper-and pencil-exams provide construct-related evidence, so are better indicators of an examinee's knowledge.
Petitioner also testified regarding criterion-related evidence, which relates to the extent to which the results of an assessment, such as the PP exam, correlate with a current or future event. By way of illustration, Petitioner testified that criterion-related evidence considers the extent to which a student's performance may be generalized to other relevant areas. Petitioner testified that an examinee's performance on the PP exam is not generalizable to other relevant activities, so it is impossible to determine whether the exam actually corresponds to minimal competence in the workplace.
In sum, Petitioner testified that the PP exam does not meet content, construct, or criterion-based evidence for purposes of determining whether it
is a valid exam. Thus, Petitioner reasons, it is logical to conclude that because the PP exam is not a good discriminator between minimally competent and incompetent engineers, it does not reliably and adequately measure competence.
Petitioner also testified that because passing the PP exam is only one component of licensure, it fails to meet criterion-based validity, in that the exam, by itself, does not certify a passing examinee to practice as a P.E. As Petitioner put it, "you're just passing the exam as part of the requirement for licensure." Petitioner reasoned that if passing the PP exam corresponds to minimal competence, the experience and education requirements of
section 471.015(2)(a) are redundant.
Also to this point, Petitioner testified that the preapproval process to take the PP exam is directly related to an examinee's actual work experience as an engineer, while taking the exam merely entails answering questions about engineering work. Thus, Petitioner contends, a competent engineer, as shown through Respondent's preapproval process, may nonetheless fail the exam. Petitioner asserts that this further shows that the exam does not accurately measure minimal competence.
Petitioner also testified that, in his view, delaying licensure of potentially competent engineers due to postponing the exam due to the Covid-19 pandemic does not serve the interest of public health and safety. To that point, he testified that the inability to obtain a variance, which would relieve examinees from having to take and pass the exam under such circumstances, renders the Challenged Rule arbitrary.22
Petitioner also contended that passing the PP exam should not be required, because other engineering professional associations—specifically, the European Federation of National Engineering Associations ("FEANI"), which represents engineers in European countries—allow licensure through
22 Petitioner's point regarding inability to obtain a variance or waiver is addressed in the Conclusions of Law.
education and experience requirement, without requiring a professional exam to be taken and passed.
However, because section 471.015, which governs the licensure of engineers in the state of Florida, requires a professional licensure examination to be taken and passed as part of the P.E. licensure requirements, Petitioner's testimony and argument regarding FEANI's practices and requirements take issue with the statute, rather than the Challenged Rule, and, thus are irrelevant.
Petitioner also contends that the examination fee for the PP exam is arbitrarily set, rendering the Challenged Rule arbitrary.
However, as discussed above, the Challenged Rule only addresses determining the passing grade for the PP exam using psychometric methods. The Challenged Rule has nothing to do with establishing or setting an examination fee. Thus, this challenge ground has no basis in fact or law.23
C. Findings Regarding the Evidence Presented in Respondent's Case Respondent's Expert Witnesses
Respondent presented the testimony of Timothy Miller, P.E., who serves as Director of Examination Services for NCEES. Miller has held this position for approximately 15 years. His job-related activities and responsibilities include directing exam development, publication, scoring, and fulfillment of the licensing exams for engineers and surveyors; coordinating exam development committees consisting of over 800 volunteer subject matter experts who work on developing each NCEES exam; overseeing the exam development process and providing advice and guidance regarding engineering exam development, administration, production, scoring, analysis, and reporting; serving as a testing process consultant to exam development committees; and other exam-development and administration-related matters.
23 Additionally, this challenge ground was not raised in the Rule Challenge Petition, so is not at issue in this proceeding. See § 120.56(1)(b), Fla. Stat.
Before Miller was promoted to his current position, he served as an examination development engineer for NCEES. In that position, Miller was responsible for planning and coordinating engineering exam development, production, administration, scoring analysis, and reporting for certain assigned examinations; serving as a testing consultant working with engineering exam development committee chairs regarding quality and number of exam development volunteers; and overseeing development and administration of the licensing exams in the specific fields of environmental controls systems, metallurgical engineering, and mechanical engineering.
Through his experience in these positions with NCEES, Miller is an expert in professional examination development and scoring, particularly with respect to the development and scoring of the NCEES FE and PP examinations.
Before being employed with NCEES, Miller practiced civil and structural engineering with several private-sector engineering firms. He has been a professional engineer since 1984, and is licensed as a P.E. in
South Carolina, North Carolina, Maryland, Delaware, Pennsylvania, and New Jersey.
Respondent also presented the testimony of Dr. Michelle Rodenberry, P.E., an associate dean and associate professor at the Florida A&M University–Florida State University College of Engineering. Her engineering expertise is in the field of structural engineering—specifically, bridge engineering.
Rodenberry was appointed to the Board in 2012, and she served as a Board member until 2018. She is now an emeritus Board member.
While on the Board, she served as chair of the education committee, and was involved in reviewing applications for licensure as a P.E. in Florida.
Development, Scoring, and Validation of the PP Exam
The NCEES engineering exams are national licensing exams that are recognized by every engineering licensing entity in each of the U.S. states, as
well as by the engineering licensing entities in Washington, D.C.; Puerto Rico; the U.S. Virgin Islands; and the other U.S. territories and protectorates.
There are approximately 26 different engineering disciplines, each of which is tested by a separate PP exam specific to that discipline.
In the 1990s, NCEES decided to transition from subjectively-graded pencil-and-paper examinations to an objectively-graded computer-based multiple-choice exam format. Currently, approximately one-third of the
PP exams, including environmental engineering, have been converted to a computer-based format, and all but one of the exams in the other disciplines is in the process of being converted.
The reason NCEES is transitioning the PP exam from a pencil-and- paper format to a computer-based format consisting of multiple-choice questions is to help eliminate subjectivity in grading, so that the exam papers are consistently graded across groups of examinees.
Additionally, a computer-based format consisting of objective multiple-choice questions allows the difficulty of the exam to be psychometrically evaluated for purposes of determining the passing score for a particular administration of the exam. To that point, because computer- based multiple-choice exams are objectively scored, exams offered at different times during the year are able to be compared, or equated, for purposes of setting the passing grade for a particular exam administration.24
Respondent entered into a contract with NCEES in 2009, pursuant to which NCEES provides the FE and PP exams for engineer licensure in Florida. In 2013, the contract was amended to allow NCEES to provide the exams by computer-based testing, using Pearson Vue as its exam
24 As Miller explained,"[i]f they were different on a difficulty level, the harder exam, the standard would actually be lowered so that it would be fair across administration so everybody was treated consistently. Or if my exam was less difficult, the standard would be raised. I would have to get more questions right."
administering entity. The FE and PP exams are administered by Pearson Vue at its testing centers.
NCEES develops model laws and rules that represent best practices with respect to state licensing of engineers. The aim of these model laws and rules is to achieve uniformity and consistency throughout the states and the
U.S. territories and protectorates in the licensure of professional engineers. A significant benefit of such consistency and uniformity is the resulting "mobility" for licensed professional engineers—that is, the ability to more easily become licensed to practice engineering in multiple states.
The NCEES model laws and rules establish the "model law engineer," which defines and constitutes the standard for minimal competence in a specific engineering discipline for purposes of being licensed as a P.E. in that discipline.
The model laws and rules define the "model law engineer" as a person who holds a degree from an engineering educational program accredited by ABET, has four years of active engineering practice experience, and passes the FE and PP exams.
The model law engineer standard equates to the competence level of an engineer having four years of engineering experience who is capable of practicing engineering in a manner that protects the public health and safety. This constitutes the minimum competence level that an applicant must demonstrate for purposes of being licensed as a P.E.25 in the 50 states and the U.S. territories and protectorates.
Thus, the NCEES PP exam is constructed to test engineering ability keyed to the model law engineer standard. That is, the PP exam is designed to determine the ability level of an applicant for P.E. licensure for purposes of
25 Refer to note 12, supra. The term "minimal competence," as used in the Challenged Rule, is specifically keyed to the "model law engineer" standard for purposes of being licensed as a
P.E. It is not meant to indicate or imply that an engineer who does not take or pass the PP exam is per se incompetent, such that he or she is not competent to engage in work constituting engineering, as defined in section 471.005(7).
comparing that ability level to that of an engineer having four years' experience who is able to practice engineering in a manner that protects the public health and safety.
Examinees having four years of engineering experience after graduation have the highest pass rates on the PP exams. Pass rates for examinees with more or less than four years of experience are lower, typically in proportion to the length of time before or after the four-year experience mark when they take the PP exam.
Miller explained, credibly and persuasively, that the reason for the drop-off in PP exam performance after the four-year mark is that "life happens." Engineers gain more experience, and many become specialized in a relatively narrow niche, or move into managerial, non-technical positions. Additionally, because the PP exam does, in part, test subjects that one learns in college, the longer an examinee is out of college, the less subject matter recall in certain areas he or she may have.
"Psychometrics" is the specialized field of study concerned with the theory and technique of psychological measurement. Specifically, psychometrics entails the objective measurement of skills and knowledge, abilities, and educational achievement. Among other specialized areas of practice, psychometricians focus on the construction and validation of assessment instruments, and theories, such as item response theory, that relate to psychological measurement. Psychometricians typically have graduate training and all possess specialized qualifications that enable them to engage in objective psychological measurement.
PP exams are designed to determine minimal competence in a specific engineering discipline. "Minimal competence" is the minimal amount of knowledge required to practice in that particular engineering discipline in order to protect the public health and safety.
For any specific engineering discipline for which it has been determined that a PP exam should be given,26 there is an approximately three-year due diligence period in which subject matter experts in that discipline work to determine the topics that should be tested on the exam.
The PP exam for each specific discipline is developed by subject matter experts, who volunteer and meet on a monthly basis to develop, review, and evaluate the questions for the PP exam for that specific discipline.27
The process of determining which topics should be tested on a PP exam, termed the Professional Activities and Knowledge Study ("PAKS") process, is a standard practice used to determine the specific topics to be tested on a PP exam.
As part of the PAKS process, a consulting psychometrician28 employed by Pearson Vue; 15 to 20 engineers who are licensed in another engineering discipline; and subject matter experts who may teach a particular engineering discipline for which the PP exam is being developed, work together to develop consensus regarding the specific topics that engineers having four years of experience practicing in that discipline need to know in order to safely practice engineering in a manner that protects the public health and safety.29
26 For a PP exam to be developed for a new engineering discipline, at least ten NCEES- member state engineering boards must request that such exam be developed, and at least one ABET-accredited program in that specific discipline must exist.
27 Over the years of development and administration of the PP exam, hundreds of licensed engineers have provided input regarding the topics that should be, and are, tested in each discipline and the relative weight given to each topic on the PP exam.
28 Pearson Vue's psychometricians who develop, score, and evaluate NCEES's exams have Ph.D. degrees in psychometrics or statistical analysis.
29 Subject matter experts selected to develop the PP exam questions are chosen based on consideration of the type of practice, such as governmental and private practice; gender; ethnicity; length of time of licensure as a P.E.; and geographic considerations. All subject matter experts must be licensed as a P.E. by a state engineering licensure board in order to
The consulting psychometrician builds a questionnaire that lists the specific topics identified by the PAKS committee, and distributes an online survey to engineers who practice in the discipline for which the PP exam is being developed. The survey seeks input regarding the relative importance of each specific topic for purposes of testing to demonstrate minimal competence in the discipline.
Based on the survey responses from engineers practicing in the discipline, exam specifications are developed. The exam specifications identify each specific topic to be tested on the PP exam, and the number or percentage of exam questions that will address each specific topic within that discipline. The exam specifications must be approved by an oversight committee.
Once the exam specifications have been approved, the subject matter experts for that specific engineering discipline for which the PP exam is being developed prepare the PP exam questions—also termed "items"—and review and evaluate them for clarity, demographic neutrality, and other parameters, so that the items will reliably and validly test engineering ability.
In computer-based multiple-choice PP exams, the questions are prepared such that for each question, there is only one correct answer and three other plausible, but incorrect, alternative choices.
The individual exam questions are reviewed numerous times by the subject matter experts before they are moved into an exam question bank for use on the PP exam.
Once the exam questions have been developed and banked for use on a PP exam, a standard-setting committee, consisting of ten to 15 licensed engineers having diverse backgrounds, experience, and demographic features, reviews the exam to determine the minimum passing score—or "cut score"—on the exam. The cut score equates to the ability level of an engineer
serve in this capacity. As noted above, over the years of development and administration of the PP exam, hundreds of engineers have provided input in developing each PP exam.
having four years of experience who is minimally competent to practice engineering at a level that protects the public health and safety.
This method of using subject matter experts to examine the content of each exam question and predict how many minimally-qualified examinees would answer each question correctly is termed the "Modified Angoff Method."
The standard-setting committee then takes the exam, and the psychometrician analyzes the data from the committee's exam sitting. Using this data and analysis, the standard-setting committee then reviews, and reaches consensus, regarding each question, for purposes of determining the proportion of minimally competent engineers who would answer that specific question correctly.
Based on the information generated by this process, the psychometrician develops the "panel recommended passing score," with a statistical margin of error. The psychometrician presents this recommended passing score to a committee of five persons, consisting of two state licensing board members and three subject matter experts who observed the exam development process. Based on the psychometrician's recommendation, the committee makes the final decision regarding the minimum passing score for the exam.
Each PP exam question is developed and evaluated using the process described above, and is placed in bank for use on a PP exam.
The psychometrician uses item response theory to "calibrate"—i.e., determine the relative difficulty level of—each exam question.30
An exam question is not banked for use on future sittings of the exam unless it has had at least 200 responses on a previous exam, so that statistics for each item's performance can be generated for purposes of item calibration.
30 Item response theory is one of many psychometric methods, or tools, used to weight exam questions for purposes of creating different forms of exams having the same level of difficulty.
Depending on the specific discipline, a question bank for a PP exam may consist of many thousands of questions.31
Using item response theory, the psychometrician converts the passing score to create a scale from -5 to +5, which will equate to the examinee's ability level as measured by the exam.
Once the passing score for the PP exam has been determined, different PP exam "forms" are created for administration in different exam sittings. Exam "forms" are essentially different versions of the PP exam that consist of different individual questions of the same difficulty level, as determined using item response theory, for each specific topic on the exam. Thus, if a PP exam was administered, for example, in April and October, the different exam administrations would consist of different forms—meaning that the exam would consist of different questions, but the questions would be of the same difficulty level for a specific topic tested on the exam.32 Additionally, because exam item difficulty has been calibrated using item response theory, different forms of a PP exam can be given during the same exam administration at different locations.33
Importantly, because the difficulty of the exam items has been calibrated using item response theory, the different exam forms are statistically equivalent in difficulty.
31 The only items that will be used on the graded portion of the PP exam are questions that have known statistics such that they have been calibrated for difficulty. However, there may be other "pretest" questions on the exam strictly for purposes of gathering statistics regarding performance on the questions for potential inclusion in the exam item bank; these "pretest" exam questions are not graded for purposes of determining the examinee's score on the exam.
32 As Miller explained, for an administration of an exam at different locations at the same time, the form administered at a particular location consists of different questions than the form administered at another location; however, the exam forms are equivalent in terms of the number of questions addressing a particular topic and the difficulty of the items addressing that topic.
33 Using the "linear-on-the-fly" ("LOFT") method to generate different forms of the exam also helps ensures exam security, since persons sitting near each other during an administration of the exam will not have the same exam form.
As a result of using these processes, including the Modified Angoff Method, and applying item response theory to calibrate the exam items for purposes of constructing different, but statistically equivalent, forms of the PP exam, examinees are not graded on how they perform against each other, but instead are graded against the cut score set for the exam.
To ensure that different forms of the exam are statistically equivalent in difficulty, Pearson Vue uses the LOFT method,34 which employs an algorithm to ensure that, across all of the exam forms, all examinees get the same number of questions of the same level of difficulty on the same topics. The algorithm randomly generates, or assembles from banked exam questions, different exam forms based on the exam specifications (i.e., the specific topics tested and relative weight/number of exam questions for that topic) and the difficulty level of the exam questions, such that the different exam forms generated by LOFT are statistically equivalent to each other.
Using item response theory to calibrate specific exam question difficulty based on the statistical probability of being answered correctly enables examinees taking different, but statistically equivalent, forms of the exam to be compared to the passing standard for purposes of determining whether they pass the exam. Thus, examinees are compared to an ability level—here, minimal competence—rather than to each other.35 This method ensures that all examinees take an exam of equivalent difficulty, which, in turn, helps ensure the fairness of the exam.
34 For the engineering disciplines having too small a group of examinees to employ item response theory or LOFT to generate different exam forms, each examinee takes the same exam instead of taking different forms of the exam, and the exam typically is offered only on one day, rather than multiple days, per year.
35 By way of example, Miller explained that if two examinees each answer five questions on the same topic on the exam, and one examinee answers four easier questions correctly and the other examinee answers two comparatively more difficult questions correctly, the examinee answering the two more difficult questions correctly may have a higher ability level on that particular topic, due to the comparative difficulty of the questions that examinee answered correctly.
Once a PP exam is administered, Pearson Vue scores the examination and sends NCEES the information regarding whether each examinee has passed or failed the exam.
Pearson Vue also provides each examinee the information regarding his or her performance on the exam compared to the minimum competence standard. The examinee's performance is expressed as a scaled score, for each specific topic tested on the exam, and for the entire exam. Specifically, using psychometric statistical methods, the ability level of the examinee is expressed as "theta," and is placed on a scale of 0 to 15 for each of the specific topics tested. The examinee's overall theta across all specific topics tested is then compared to the "minimal competence" passing standard, which is also expressed as a scaled score using the same 0 to 15 scale.
After an exam is taken and scored, the consulting psychometrician analyzes this data, called "response data," for each exam question, for each examinee, to calibrate the items for purposes of determining whether a particular question performs well in discriminating ability level of the examinees. The psychometrician may recommend that an exam question be "retired" because it is not performing as a good discriminator of ability level. Examples are where an exam question is too difficult or too easy, such that it does not discriminate well in determining ability level; where an item takes too long to answer or is ambiguous; where an item has been "overexposed" by having become publicized such that future examinees have access to the question and scores on the question become high; or where an exam contains "bad pair" items, such that the answer to one item may suggest, or lead to, the answer on another similar item. Having a psychometrician involved in tracking and analyzing exam data enables such circumstances and situations—which may influence the scores on a test item for reasons not related to the examinee's ability—to be identified and corrected.
Returning to a free response, paper-and-pencil exam format for the
P.E. licensing exam would provide a far less objective, fair, and accurate
measure for determining minimal competence for purposes of being licensed to practice engineering. It also would negatively affect the ability of licensed engineers to become licensed in other states.
Due to the use of psychometric methods in developing and scoring, the PP exams are very reliable across multiple administrations of the exam— to the point that all of NCEES's psychometric-based PP exams score upwards of .9 on a scale of 1.0.36
Psychometric methods, including item response theory, are used in developing, administering, and scoring many different types of high-stakes professional and academic examinations, including medical school admissions examinations, and nursing, medical examiner, internal auditor, and architecture licensure examinations.
NCEES audits approximately one-third of the exams administered by Pearson Vue on an annual basis, to independently evaluate the accuracy of the psychometric services provided by Pearson Vue, and to ensure that the exams have been created pursuant to NCEES's guidelines, procedures, and requirements. NCEES also retains independent psychometricians to review Pearson Vue's exam-related reports and analyses, to ensure that Pearson Vue is following standard psychometric rules of good practice.
In sum, the use of objective psychometric methods, including the methods discussed above, to develop, score, and evaluate the PP exam ensures that minimal competence, for purposes of licensure as a P.E., is accurately measured by the exam.
Role of the PP Exam in Licensure of PEs in Florida
As discussed above, to be licensed as a P.E. in Florida, an applicant must have a college degree from an ABET-accredited institution, four years of
36 Test reliability refers to the degree of consistency with which a test measures a particular subject matter across different administrations of the test. A test has a high reliability score if it consistently produces similar results under consistent conditions. A 1.0 reliability score reflects perfect consistency in results across different administrations of a test. An acceptable reliability score target for high-stakes tests is .7 or higher.
active experience in engineering practice, and have passed the FE and PP exams.
Thus, the P.E. exam is a vital component of determining that an engineer licensed as a P.E. to practice in Florida is able to practice at a competence level that protects the public health and safety.
Unlike the education and experience requirements for licensure— both of which may entail a great deal of variability in quality and breadth across applicants—the PP exam constitutes an objective, consistent tool37 to measure an applicant's level of competence for purposes of determining whether the applicant possesses the minimal competence needed to practice engineering in a manner that protects the public health and safety.
As such, the PP exam constitutes a uniform measure of minimal competency for purposes of licensure as a P.E. in Florida. As discussed above, this does not mean that a person who engages in engineering work but has not passed the PP exam is incompetent; it merely means that he or she has not demonstrated minimal competency on this required objective measure of competency for licensure purposes.
As discussed above, the PP exam is specifically designed to ensure that a licensed P.E. is competent to practice over a range of specific areas encompassed within a particular discipline. This is because a licensed P.E. is authorized to practice engineering within any discipline or area, subject to professional and ethical standards. The breadth of the PP exam thus helps ensure minimal competence to practice engineering in a manner that protects the public health and safety.
37 This consistency and uniformity is the direct result of the psychometrically-based exam development, scoring, calibration, and validation methods discussed above.
The purpose of P.E. licensure is to inform and protect the public, which is entitled to rely on such licensure as indicating that the licensee is competent to practice engineering.38
Administration of the PP Exam During the Covid-19 Pandemic
As discussed above, Petitioner has alleged that the Challenged Rule is arbitrary on the basis that it does not address contingencies for offering the exam if unforeseen circumstances prevent regular administration of the PP exam. Specifically, Petitioner points to the fact that Pearson Vue cancelled the April 2020 PP exam administration due to the Covid-19 pandemic.
Pearson Vue has rescheduled the PP exams for various times and at various locations around the country in an effort to make the PP exam available for prospective examinees during the pandemic.39 Pearson Vue also is taking substantial steps to protect persons who have applied to take the PP exams during the Covid-19 pandemic. To that point, Pearson Vue has retrofitted its testing centers to help ensure the safety of the examinees as they sit for the PP exam. Specifically, the number of examinees who will be in a testing room has been reduced; masks are required to be worn by examinees and proctors; testing stations are cleaned between each use; some additional test center locations have been added; and some states have relaxed rules to allow examinees to sit for the exam in states other than the one for which they are applying for licensure.
At present, the exams are not able to be offered over the internet so that examinees are able to take the exam at a remote location. A substantial reason for this is lack of exam security, which is necessary to protect and
38 As noted above, a person does not have to be licensed as a P.E. to engage in engineering work in Florida. However, if a person wishes to hold himself or herself out to the public as a P.E., then that person must satisfy the requirement to pass the PP exam, which is an indicator of minimal competence for purposes of licensure.
39 Among other things, Petitioner alleges, in paragraph 19 of the Rule Challenge Petition, that the Challenged Rule is invalid under section 120.52(8)(d) because it does not address circumstances where an examination cannot be administered due to force majeure. As
maintain the exam's integrity. Additionally, the lack of guarantee of internet service reliability and functionality for every examinee is a crucial consideration, since failed internet connections could significantly affect the fairness of the exam.
CONCLUSIONS OF LAW
DOAH has jurisdiction over this proceeding pursuant to sections 120.56(1) and (3), 120.569, and 120.57(1).
Petitioner's Standing
As discussed above, Petitioner has satisfied the education requirement for licensure in section 471.015(1), and is employed as an engineer. He is in the process of accruing the amount of active engineering experience necessary to become licensed as a P.E. in Florida. To the extent he may again apply for licensure as a P.E., he will be required to take and pass the PP exam.
Accordingly, Petitioner is subject to regulation by the Challenged Rule, and therefore has standing, as a substantially affected person, to challenge the Challenged Rule in this proceeding. See Prof'l Firefighters of Fla., Inc. v. Dep't of HRS, 396 So. 2d 1194 (Fla. 1st DCA 1981)(person whose ability to be professionally licensed is affected by a rule has standing to challenge that rule).
Burden and Standard of Proof
In this rule challenge proceeding, Petitioner bears the burden, by a preponderance, or greater weight, of the evidence, to prove that the Challenged Rule is an invalid exercise of delegated legislative authority on the grounds raised in the Rule Challenge Petition. § 120.56(3)(a),
Fla. Stat.
discussed below, this alleged ground is not a legally cognizable basis for invalidating the rule under section 120.52(8)(d).
The Challenged Rule
The Challenged Rule states: "[t]he passing grade for the Principles and Practice Examination is determined by the National Council of Examiners for Engineering and Surveying, where psychometric statistical methods are used to determine the level of performance that corresponds with minimal competence in the discipline." Fla. Admin. Code R. 61G15- 21.004(2).
Cited Grounds for Alleged Invalidity of the Challenged Rule
As discussed above, Petitioner has challenged the rule, pursuant to section 120.56(3), as an invalid exercise of delegated legislative authority.
Section 120.52(8) defines "invalid exercise of delegated legislative authority," in pertinent part, as:
ction that goes beyond the powers, functions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one of the following applies:
* * *
The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(3)(a)1.;
The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency;
The rule is arbitrary or capricious. A rule is arbitrary if it is not supported by logic or the necessary facts; a rule is capricious if it is adopted without thought or reason or is irrational; or
The rule imposes regulatory costs on the regulated person, county, or city which could be reduced by the adoption of less costly alternatives that substantially accomplish the statutory objectives.
§ 120.52(8), Fla. Stat.
Section 120.52(9) defines "law implemented" as "the language of the enabling statute being carried out or interpreted through rulemaking."
Section 120.52(8)(e) states that a rule is arbitrary if it is not supported by logic or the necessary facts.
Section 120.52(8)(e) states that a rule is capricious if it is adopted without thought or reason or is irrational.
Conclusions Regarding Alleged Invalidity under Section 120.52(8)(c)
As discussed above, DOS made a technical, non-substantive change to the Challenged Rule, as authorized by rule 1-1.010(10), to update the statutory citation, from section 455.217(1)(c) to section 455.217(1)(d), as the law implemented by the Challenged Rule.
Section 455.217(1)(d) states, in pertinent part:
A board . . . may 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 The
department shall use any national examination which is available, certified by the department, and approved by the board.
This statute expressly authorizes Respondent to use any national exam—here, the NCEES FE and PP exams. Thus, the technical change to the Challenged Rule, to correctly cite section 455.217(1)(d) as the law implemented, nullifies the alleged invalidity ground stated in paragraph 15 of the Rule Challenge Petition. To this point, Petitioner conceded, in his deposition testimony, that this change to the "law implemented" citation nullified his challenge under section 120.52(8)(c).
Accordingly, it is concluded that the Challenged Rule is not an invalid exercise of delegated legislative authority on the ground that it enlarges, modifies, or contravenes section 455.217(1)(c), as alleged in the Rule Challenge Petition.
As discussed above, Petitioner also contends that the Challenged Rule is invalid because it enlarges, modifies, or contravenes section 455.217(1)(a), because the PP examination does not adequately and reliably measure an applicant's ability to practice engineering, as regulated by Respondent.
However, as discussed above, section 455.217(1)(a) is not cited as a specific provision of law implemented by the Challenged Rule.
Accordingly, as a matter of law, it is concluded that the Challenged Rule cannot be determined invalid on the ground that it enlarges, modifies, or contravenes section 455.217(1)(a).
Conclusions Regarding Alleged Invalidity under Section 120.52(8)(d)
Based on the Findings of Fact set forth above, it is concluded that Petitioner did not demonstrate, by a preponderance of the evidence, that the Challenged Rule is invalid on the ground that it is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency.
As discussed above, Petitioner's primary argument is that the Challenged Rule is vague because it does not specify the general areas of competency to be tested on the PP exam.
A rule is vague, for purposes of being invalid, if it is drafted in terms so vague that men of common intelligence must necessarily guess at its meaning, and differ as to its application. Witmer v. Dep't of Bus. and Prof'l Reg., Div, of Pari-Mutuel Wagering, 662 So. 2d 1299, 1302 (Fla. 4th DCA 1995). In Southwest Florida Water Management District v. Charlotte County, 774 So. 2d 903 (Fla. 2d DCA 2001), the court stated that in determining whether a challenged rule is vague, consideration must be given to the context in which the rule is applied. See id. at 916.
As discussed in detail above, PP exams are developed on a discipline- specific basis, and exam specifications are developed for each discrete subject matter topic tested on the PP exam for each discipline. NCEES publishes
those test specifications, along with the relative weight for each specific topic tested within that discipline. Thus, a prospective examinee is not left to wonder or guess as to which disciplines will be tested; the areas within each discipline that will be tested; or the relative weight that will be given to each area tested.
Furthermore, as discussed above, the Challenged Rule addresses the methods used to determine the passing score on the PP exam. Section 455.217(1)(d), which is the statutory authority cited for the Challenged Rule, does not require or authorize the Challenged Rule to identify the specific disciplines or the discrete areas that will be tested within each discipline; thus, if the Challenged Rule did so, it would enlarge, modify, or contravene the law implemented.
Further, if the Challenged Rule addressed specific disciplines or discrete areas tested within each discipline, it would violate the requirement in section 120.54(1)(g) that a rule address only one subject.
For these reasons, it is concluded that the rule is not vague, as alleged in the Rule Challenge Petition, and, therefore, is not invalid on the ground set forth in section 120.52(8)(d).
Conclusions Regarding Alleged Invalidity under Section 120.52(8)(e)
Based on the foregoing Findings of Fact, it is concluded that Petitioner did not prove, by the preponderance of the evidence, that the Challenged Rule is arbitrary or capricious, and, thus, invalid pursuant to section 120.52(8)(e).
As noted above, a rule is arbitrary if it is not supported by logic or the facts, and it is capricious if it is adopted without thought or reason or is irrational. § 120.52(8)(e).
The key inquiry is whether the challenger demonstrates, by the preponderance of the evidence, that there is no rational relationship between the provisions of the rule and the interests sought to be protected. Bd. of Trustees v. Levy, 656 So. 2d 1359, 1363 (Fla. 1st DCA 1995). Here, the inquiry
focuses on whether there is a rational relationship between the use of psychometric methods to determine the passing score on the PP exam, and accurate measurement of minimal competence for purposes of P.E. licensure in Florida.
As discussed above, Petitioner is not an expert in the specialized field of psychometrics and its tools, including item response theory. Thus, any testimony Petitioner presented on these subject matters constitute lay opinion testimony on matters not within the realm of his knowledge or personal perception. Accordingly, as discussed above, Petitioner's testimony on these subject matters has not been assigned weight.
By contrast, Respondent presented competent, persuasive testimony by experts regarding the precise reasons for using psychometric statistical methods to develop and score the PP exam. As this expert testimony established, there is a strong rational relationship between using psychometric statistical methods to develop and score the PP exam, and the objective, accurate measurement of minimal competence for purposes of P.E. licensure.
Petitioner also alleges that the rule is arbitrary because it fails to address exam administration under emergency circumstances—specifically, here, offering the exam notwithstanding the threat to the public health due to the Covid-19 pandemic.
A rule is not arbitrary merely because it fails to address every possible contingency that could occur. Rather, the question is whether the rule reasonably implements the subject matter of the statute that authorizes it. Dravo Basic Materials Co. v. Dep't of Transp., 602 So. 2d 632, 634 (Fla. 2d DCA 1992).
For the reasons discussed above, it is concluded that the Challenged Rule reasonably implements sections 455.217(1)(d) and 471.015(2).
Furthermore, neither sections 455.217(1)(d) nor 471.015(2) authorize the Challenged Rule to address contingent circumstances—here, a global
health emergency that briefly delayed administration of the PP in order to protect human health. If the Challenged Rule did address such matters, it would enlarge the statutes it implements and, thus, would be invalid on that basis. Additionally, the Challenged Rule would violate the requirement in section 120.54(1)(g) that a rule only address one subject.
Petitioner also contends the Challenged Rule is arbitrary because there is no means for obtaining a variance from, or waiver of, the requirement that an applicant pass the PP exam to be licensed as a P.E.
To obtain a variance from a rule, the person seeking the variance must demonstrate, by competent substantial evidence, that the rule would create a substantial hardship or violate principles of fairness, and that the purpose of the underlying statute would be achieved by other means.
§ 120.542, Fla. Stat. Because section 120.542 only authorizes variances and waivers of rules—not statutes—a person seeking a variance or waiver must demonstrate that if the variance or waiver is granted, the statute's purpose still is met.
Here, section 471.015 requires an applicant for licensure as a P.E. to take and pass the PP exam.40 Thus, Respondent is not authorized to issue a variance or waiver excusing prospective licensees from this statutory exam requirement, notwithstanding the hardship that the Covid-19 pandemic temporarily may have imposed on prospective licensees due to a brief delay in administering the PP exam.
Finally, to the extent Petitioner contends that the Challenged Rule is arbitrary because it equates minimal competence as demonstrated by passing the PP exam, with the relatively lengthy experience requirements for licensure by endorsement under section 471.015(5), Petitioner's disagreement is not with the Challenged Rule, but instead is with section 471.015, which
40 A person who is licensed out-of-state as a P.E. and has a specified number of years of active engineering experience may be licensed by endorsement, pursuant to section 471.015(5).
authorizes, and treats as equivalent, these separate means for becoming licensed as a P.E.
Conclusions Regarding Alleged Invalidity under Section 120.52(8)(f)
Section 120.541(1)(g) states:
A rule that is challenged pursuant to s. 120.52(8)(f) may not be declared invalid unless:
The issue is raised in an administrative proceeding within 1 year after the effective date of the rule;
The challenge is to the rejection of a lower cost regulatory alternative offered under paragraph (a) [section 120.541(1)(a)] or section 120.54(3)(b)2.; and
The substantial interests of the person challenging the rule are materially affected by the rejection.
§ 120.541(1)(g), Fla. Stat. (emphasis added).
The statutory requirements of section 120.541(1)(g) are conjunctive, and the first condition for determining a rule invalid pursuant to
section 120.52(8)(f)—i.e., that the rule is challenged on this basis within a year of its effective date—has not been met in this proceeding. The Challenged Rule's history, cited below the text of the Rule, states that it's effective date, in its initial form, was January 8, 1980, and the effective date of the most recent amendment was October 25, 2015—both dates well more than one year before Petitioner filed his Rule Challenge Petition.
It is undisputed that Petitioner filed his Rule Challenge Petition after the one-year period set forth in section 120.541(1)(g). Therefore, Petitioner's challenge on the basis of section 120.52(8)(f) is time-barred by section 120.541(1)(g).
Accordingly, it is concluded, as a matter of law, that the Challenged Rule cannot be determined invalid in this proceeding on the basis of
section 120.52(8)(f).
Conclusion
Based on the foregoing Findings of Fact and Conclusions of Law, it is determined that Petitioner has not demonstrated, by the preponderance of the evidence, that the Challenged Rule is invalid on any of the grounds alleged in the Rule Challenge Petition.
ORDER
Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the Petition for an Administrative Determination of the Invalidity of Rule 61G15-21.004(2), Florida Administrative Code is dismissed.
DONE AND ORDERED this 19th day of November, 2020, in Tallahassee, Leon County, Florida.
S
CATHY M. SELLERS
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
COPIES FURNISHED:
Jonathan A. Batista Apartment 101
8965 Okeechobee Boulevard West Palm Beach, Florida 33411 (eServed)
Robert Antonie Milne, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 (eServed)
Filed with the Clerk of the
Division of Administrative Hearings this 19th day of November, 2020.
John Rimes, Chief Prosecuting Attorney Florida Engineers Management Corporation 2639 North Monroe Street, Suite B-112 Tallahassee, Florida 32303-5268
(eServed)
Ken Plante, Coordinator
Joint Admin Proced Committee Room 680, Pepper Building 111 West Madison Street
Tallahassee, Florida 32399-1400 (eServed)
Ernest Reddick, Program Administrator Anya Grosenbaugh
Florida Administrative Code & Register Department of State
R. A. Gray Building
500 South Bronough Street Tallahassee, Florida 32399-0250 (eServed)
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 administrative appeal with the agency clerk of the Division of Administrative Hearings within 30 days of rendition of the order to be reviewed, and a copy of the notice, accompanied by any filing fees prescribed by law, with the clerk of the district court of appeal in the appellate district where the agency maintains its headquarters or where a party resides or as otherwise provided by law.
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 19, 2020 | DOAH Final Order | Petitioner did not prove, by a preponderance of the evidence, that the challenged rule was an invalid exercise of delegated legislative authority, as alleged in the rule challenge petition. |
