STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDWIN K. MIDDLESWART, )

)

Petitioner, )

)

vs. ) CASE NO. 87-4412

) DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF )

PROFESSIONAL ENGINEERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice a final hearing was held in this case on March 9, 1988, in Pensacola, Florida, before Jose A. Diez-Arguelles, a hearing officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Edwin K. Middleswart, pro se

3805 Dunwoody Drive

Pensacola, Florida 32503

For Respondent: John B. Carr, Esquire

320 West Cervantes Pensacola, Florida 32501

BACKGROUND

By letter dated September 14, 1987, Petitioner requested a hearing to contest the grade he received on the Principles and Practice Chemical Engineering Examination. By letter dated October 1, 1987, Respondent requested that a hearing officer from the Division of Administrative Hearings be assigned to conduct the hearing.

At the hearing, Petitioner testified on his own behalf, presented the testimony of Bruce McLeod and offered 9 exhibits, 6 of which were accepted into evidence. Respondent presented the testimony of Allen "Rex" Smith and offered 2 exhibits which were accepted into evidence.

Petitioner filed a post-hearing submission which is addressed in the Appendix attached to this Order. Respondent did not submit a post-hearing statement.

ISSUE

Should Petitioner be deemed to have passed the Principles and Practice Chemical Engineering Exam?

FINDINGS OF FACT

1. Petitioner sat for the Principles and Practice of Engineering Examination on April 1O, 1987. The examination consisted of an applicant completing eight problems. On each problem, an applicant could receive from 1 to 10 points. A score of 5 or less was considered "unqualified", a score of 6 or more was considered "qualified". In order to pass the examination, an applicant needed to receive a total raw score of 48 or more, out of a possible score of 80.

   
   

2. Petitioner received a raw score of 43 on his examination.

   
   

3. Petitioner is challenging the scores for problems 110, 111, and 414. On problem 110, Petitioner received a score of 1. On problems 111 and 414, Petitioner received scores of 4.

   
   

4. An Item Specific Scoring Plan (ISSP) was prepared for each examination problem. The ISSP was to be used by the persons grading the exam to assure that all solutions were graded consistently. The ISSP set forth the criteria to be used in grading the solution to a problem and set forth guidelines to be used in determining the points to be given to the solution.

   
   

5. In addition to the ISSP, a preferred solution was prepared for each problem.

   
   

6. The scores of 4 given for Petitioner's solutions to problems 111 and

   414 are consistent with the ISSPs for those problems.

   
   

7. The score of 1 given to Petitioner's solution for problems 110 is not consistent with the ISSP and the preferred solution for that problem.

   
   

8. In order to receive a score of 8, the ISSP requires that a solution contain the following:

   
   

   ALL CATEGORIES satisfied, errors attributable to misread tables or calculating devices. Errors would be corrected by routine checking. Results reasonable, though not correct.

   An operable system is presented, containing all the key elements, but calculations may involve minor errors in math or transcribing data.

   Answers obtained for requirement (b) are reasonable.

   May have assumed an excessively high, but not obviously unreasonable, exit water temperatures, c.g. 150F.

   
   

9. Petitioner's solution to problem 110 presented an operable system containing all key elements.

   
   

10. The errors committed by Petitioner were caused by misreading a table and by transcribing the wrong data.

    
    

11. Petitioner's solution to problem 110 should have received a score of

    8.

12. Petitioner should have received a raw score of 50 on the exam.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding. Sec. 120.57, Fla. Stat.

    
    

14. In this case, Petitioner bears the burden of demonstrating by a preponderance of the evidence that the decision of the graders was arbitrary or capricious. See State ex rel. Glaser v. J. M. Pepper, 155 So.2d 383 (Fla. 1st DCA 1963); State ex rel. Topp v. Board of Electrical Examiners for Jacksonville Beach, 101 So.2d 583 (Fla. 4th DCA 1958). A capricious action is one which is taken without thought or reason or irrationally. An arbitrary decision is one not supported by facts or logic, or despotic. Agrico Chemical Company v. State Department of Environmental Regulation, 365 So.2d 759, 763 (Fla. 1st DCA 1978). Further, absent a showing that the examining board failed to follow standard procedures for conducting or grading the examination, or a showing that the candidate was treated differently from other examination candidates, examination results will not generally be disturbed. Daniel B. Schmidt v. Board of Professional Engineers, Department of Professional Regulation, DOAH Case No. 87- 4175 (Recommended Order issued March 11, 1988).

    
    

15. In this case, Petitioner has failed to show that the scores he received on problems 111 and 414 were inconsistent with the ISSP or that Respondent's actions were otherwise arbitrary or capricious.

    
    

16. The evidence in this case, however, supports the conclusion that the score Petitioner received on problem 110 is inconsistent with the ISSP and is arbitrary and capricious. Petitioner received a score of 1 on his solution to problem 110. At the hearing, convincing evidence was presented that the score for the solution to problem 110 should have been considerably higher than 1. Respondent's witness testified that he would have given Petitioner a score of 5. Petitioner's witness testified that Petitioner's solution was consistent with the ISSP's criteria for a score of 8. The only possible explanation for these large discrepancies is that the grader of Petitioner's solution did not follow the ISSP's guidelines in grading Petitioner's solution. Therefore, the grader's actions were arbitrary and capricious.

    
    

17. As set forth in Findings of Fact 11 and 12, supra, the evidence in this case shows that Petitioner should have received a score of 8 on his solution to problem 110, and should have received a total raw score of 50, a passing grade.

    
    

18. The deposition testimony of Dr. Handley to the effect that Petitioner's solution to problem 110 should have received a score of 5 based on the ISSP is rejected when weighed against the other evidence presented in this case. In his testimony, Dr. Handley found three errors in Petitioner's solution. Two of these errors were errors attributable to misread tables. These types of errors are consistent with a score of 8, according to the ISSP.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent issue a final order giving Petitioner a passing

grade on the Principles and Practice Chemical Engineering Examination.

DONE and ENTERED this 11th day of May, 1988, in Tallahassee, Florida.

JOSE A. DIEZ-ARGUELLES

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 May, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4412

Petitioner filed a post-hearing submission consisting of a two page letter containing nine paragraphs. The second to fourth paragraphs are numbered 1., 2. and 3. The findings of fact contained in the letter are addressed below.

Paragraph numbers in the Recommended Order are referred to as "RO ."

Paragraph in Letter Ruling and Recommended Order Paragraph Number

First Not a finding of fact.

Second, Third and Fourth Rejected as not supported

by the evidence for solution to problems 111 and 414.

Accepted for solution to problem 110. RO6-10.

Fifth Argument.

Sixth First sentence accepted. RO11. Rest of paragraph is irrelevant.

Seventh Rejected as argument and contrary to weight of the evidence.

Eighth Argument.

Ninth Not a finding of fact.

COPIES FURNISHED:

Edwin K. Middleswart 3805 Dunwoody Drive

Pensacola, Florida 32503

John B. Carr, Esquire

320 West Cervantes Pensacola, Florida 32501

Allen R. Smith, Jr. Executive Director Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

William O'Neil General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 87-004412

Orders for Case No: 87-004412