STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MAX E. LAMBIE, )

)

Petitioner, )

)

vs. ) CASE NO. 86-1798

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF )

PROFESSIONAL ENGINEERS, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter, after due notice, at Fort Lauderdale, Florida, on August 21, 1986, before Thomas C. Oldham, Hearing Officer.

APPEARANCES

For Petitioner: Max E. Lambie, pro se

For Respondent: H. Reynolds Sampson, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

ISSUE PRESENTED

Whether Petitioner's application for licensure as a structural engineer should be approved. This case arose as a result of a determination by Respondent that Petitioner had not passed the reexamination for licensure as a structural engineer which was held on October 25, 1985. Petitioner contends that he was disadvantaged by the time allowed to study for the examination, the time taken to publish the results of the examination, the esoteric nature of a steel beam problem, and the design method required for a reinforced concrete structure. Respondent takes the position that Petitioner was not so disadvantaged, but that even if he were, it is not sufficient to increase his grade to a passing score. The respective contentions of the parties were embodied in a pre-hearing stipulation which was received in evidence as Joint Exhibit 1.

Petitioner appeared at the hearing unaccompanied by legal counsel and was therefore advised of his rights and the procedures to be employed in the administrative proceeding. He indicated that he understood his rights and such procedures, and elected to represent himself.

During the course of the hearing, Petitioner testified in his own behalf and submitted six exhibits which were received in evidence. Respondent presented the testimony of James A. Power, a consulting structural engineer and

Allen R. Smith, Executive Director of the Board of Professional Engineers. In addition, Respondent submitted six exhibits in evidence, which were admitted. Petitioner's application for the Professional Engineer's Reexamination was received in evidence as Hearing Officer's Exhibit 1. The parties were given until September 2, 1986, in which to file any posthearing submissions. However, Respondent failed to file any such submission and Petitioner's written argument was untimely filed on September 3, 1986.

FINDINGS OF FACT

1. By application received by Respondent on August 13, 1985, Petitioner Max E. Lambie applied for the Professional Engineer's Reexamination to be held on October 25, 1985. The application reflected that Petitioner had previously passed the "Fundamentals" part of a previous examination on April 19, 1985, and that his application was to take the "Principles and Practice" part for reexamination in the discipline of structural engineering. By a letter dated August 21, 1985, Respondent acknowledged receipt of the application and applicable fees. (Hearing Officer's Exhibit 1)

   
   

2. Petitioner thereafter received from Respondent's Office of Examination Services, a "Notice to Appear for October 24-25, 1985, Professional Engineer (PE) Examination." The notice included information that Part II of the examination was to be based on Professional Principles and Practice, and devoted primarily to the field of the applicant's ability to apply acceptable engineering practice to problems which are representative of the candidate's discipline. It further stated as follows:

   
   

   In the Principles and Practice portion of the examination, candidates are required to solve eight (8) problems; four (4) in the morning session and four (4) in the afternoon session, drawn from a test pattern generally set forth as follows:

   
   

   (H) STRUCTURAL:

   Structural Concrete, Structural Steel and Light Metal, Bridges or Bridge Elements, Wood, Masonry, Lateral Forces.

   
   

   The notice also stated that a passing grade on Part II of the examination was defined as a grade of seventy (70) or better, and that within approximately three (3) months after the examination date, the applicant would receive written notification of the examination results. (Petitioner's Exhibit 1)

   
   

3. By a Memorandum from Allen R. Smith, Jr., Director, Board of Professional Engineers, dated September 20, 1985, applicants applying for licensure by examination in the structural engineering discipline were advised that the examination was now given once a year and that the schedule was October

   24 and 25, 1985, and October 23 and 24, 1986. The Memorandum further noted that the Board of Professional Engineers had amended Rule 21H- 21.02, Florida Administrative Code, with regard to the discipline of structural engineering to require that applicants were required to answer questions dealing specifically with structural engineering, and that applicants must answer four out of six

   questions on the a.m. and four out of six questions on the p.m. portions of the Principles and Practice examination. Enclosures to the Memorandum reflected the subject matter and numbers of the examination questions. A copy of Chapter 21H-

   21 of the Respondent's Rules, dated July, 1985, was attached to the Memorandum. Rule 21H-21.02(2) provided in part as follows:

   
   

   1. Part two of the examination shall be based on Professional Practices and Principles and shall be devoted primarily to the field of the applicant's finding solutions to problems designed to test the applicant's ability to apply acceptable engineering practice to problems which are representative of his discipline. Applicants for registration must select one of the listed specializations in which to be examined. . . .

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

   (h) STRUCTURAL--"Structural Concrete, Structural Steel and Light Metal, Bridges or Bridge Elements, Wood, Masonry, Lateral Forces."

   
   

   Finally, the Memorandum included an enclosure entitled "Design Reference Codes, Standards and Manuals" which listed various manuals and codes to be used as references for the review and use of applicants. The Southern Standards Building Code, Uniform Building Code, and Basic Building Code, had an asterisk after their listings. A note at the bottom of the listing stated "Use code with which you are familiar and/or currently using in your practice." One of the listings also was "Building Code Requirements for Reinforced Concrete, ACI 318- 83." It was not followed by an asterisk on the listing. (Petitioner's Exhibits 2-3)

   
   

4. Petitioner took the October, 1985, examination which was a national examination produced by the National Council of Engineering Examiners (NCEE) and available for certification or licensure throughout the United States. Respondent's Rule 21H-21.01 provides that the examination "shall be provided by the National Council of Engineering Examiners (NCEE)." (Stipulation (Joint Exhibit 1), Petitioner's Exhibit 2, Testimony of Petitioner)

   
   

5. Petitioner did not receive his examination grades until March, 1986. The uniform grade notice, dated March 21, 1986, advised him that his examination grade was 66.3 which was failing and that a minimum passing score was 70. The reason for the delay in mailing the examination scores was that one of Respondent's graders for a specific portion of the examination was unavailable due to illness or accident. (Testimony of Smith, Respondent's Exhibit 5)

   
   

6. At the hearing, Petitioner testified that the late notification by Respondent that only questions on structural engineering would be on the October examination disrupted his preparation and left him insufficient time to adequately prepare for the examination. He testified that in prior examinations it was possible for a candidate to select questions not specifically related to structural engineering, such as economics, and that he had to "scramble" to

   obtain texts to study for new subjects. He also claimed that the note at the bottom of Respondent's Design Reference Codes, Standards and Materials (Petitioner's Exhibit 3) which had accompanied Respondent's September 20, 1985 Memorandum to applicants (Petitioner's Exhibit 2) was misleading in that he construed the note to permit him to use whatever building code he was familiar with, and that it was not until he arrived at the examination that he found out that he had made the wrong assumption in that regard. The facts show, however, that the prior examination taken by Petitioner was not solely in the structural engineering discipline, but was a Civil/Sanitary/ Structural examination.

   Further, Respondent's note on the listing of reference manuals clearly indicated that it applied only with respect to the Southern Standards Building Code, Uniform Building Code, and the Basic Building Code, and not to the other codes and manuals listed therein. (Testimony of Petitioner, Petitioner's Exhibits 2- 3, Respondent's Exhibit 3)

   
   

7. Petitioner claimed that the examination contained questions requiring the application of building code requirements for reinforced concrete, ACI 318- 83, which had only been in effect for the past two years and was not familiar to applicants of his age group and past experience. He contended that he had to hurriedly prepare himself utilizing unfamiliar texts that had become available only a few months prior to the examination. ACI 318-83 deals with a concept called "ultimate strength design," but Petitioner was familiar with an older concept called "working strength design." He further claimed that the South Florida Building Code was based entirely on the latter concept. However, expert testimony presented by the Respondent showed that the ultimate strength design concept had been part of the ACI code since 1956 and always had been required in designing prestressed concrete members. He also testified that working strength design is still permitted as an alternative concept in ACI 318-83, that both the South Florida Building Code and Standard Building Code require conformance to ACI 318-83, and that such requirements have been in both codes for at least 25 years. Accordingly, it is found that Petitioner's claims that he was prejudiced by the use of ACI 318-83 in problems on the examination are without merit. In this regard, it is also noted that the April 19, 1985 examination required the use of the latest ACI code and one question required the use of the ultimate strength method. (Testimony of Petitioner, Tower, Respondent's Exhibits 1-6)

   
   

8. Respondent also contended at the hearing that question no. 275 of the October, 1985 examination contained a typographical error which required assumption of a different criterion for the solution, and that his expenditure of time in resolving the situation resulted in a score of five out of a possible ten. However, no evidence was presented that his solution was incomplete or that the score awarded by the graders was incorrect. Petitioner brought the typographical error to the attention of the Board by a letter stating that the error induced "extraordinary anxiety which contributed to a loss of concentration" and asked that his observation be passed on to the NCEE. At the hearing, he claimed that past typographical errors on examinations had resulted in adjustment of score points and that such should have been done with regard to the error which he pointed out to Respondent. Again, however, it is found that there was insufficient evidence presented to establish that the error noted by Petitioner had affected the grading of his solution. (Testimony of Petitioner, Petitioner's Exhibits 5-6, Respondent's Exhibits 2, 6.)

   
   

9. Petitioner's claim that the late grading of the examination precluded him from applying for the Spring, 1986 examination is found to be irrelevant to the question of his failure of the October, 1985 examination. Further, his complaint that the new structural examination is used only in six states and that Florida was one of the first states to adopt the new examination provides

   no grounds for relief. The Board's purpose in changing the examination format was due to the belief that structural engineers should be more qualified in that particular discipline. In any event, the new Board rule established such format and no challenge to the rule was filed by Petitioner. (Testimony of Petitioner, Smith)

   
   

   CONCLUSIONS OF LAW

   
   

10. Section 471.015(1), Florida Statutes, provides as follows:

    
    

    1. The department shall license any applicant who the board certifies is qualified to practice engineering and who has passed

       the licensing examination.

       
       

11. Petitioner contests the failing grade that he received on the October, 1985 structural engineering examination on various grounds set forth in the foregoing Findings of Fact. As an applicant for licensure, Petitioner bears the burden of proof to establish by a preponderance of the evidence that he is entitled to licensure.

    
    

12. The main thrust of Petitioner's case is that he was prejudiced by the fact that Respondent instituted the practice of requiring applicants selecting structural engineering as their examination discipline to answer questions dealing exclusively with structural engineering. Although Petitioner failed to present cogent reasons as to why an applicant should not be required to be tested exclusively in his special field, even if valid reasons had been advanced that Petitioner was disadvantaged by the requirement, the fact remains that by its amendment to Rule 21H-21.02, Florida Administrative Code, which was promulgated in the summer of 1955, any applicant was put on notice as to the subjects to be included in the structural field of the examination. Specifically, Rule 21H-21.02(2) provides pertinently as follows:

    
    

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

    specializations in which to be examined. . . .

    
    

    Inasmuch as Petitioner selected the discipline of structural engineering, he was subject to the strictures imposed by the Board pursuant to its rule and cannot now complain that he was prejudiced by the fact that the Respondent followed its rules.

    
    

13. The other matters raised by Petitioner have been addressed in the preceding Findings of Fact and are considered insufficient to warrant the requested relief. In view of the foregoing, it is

RECOMMENDED that the petition herein be DISMISSED.

DONE and ENTERED this 11th day of September, 1986 in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 1986.

COPIES FURNISHED:

Mr. Max E. Lambie c/o D. Stockhausen

14310 S.W. 14th Street Davie, Florida 33325

H. Reynolds Sampson, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Allen R. Smith, Executive Director Board of Professional Engineers Dept. of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Fred Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Wings Benton, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 86-001798

Orders for Case No: 86-001798