STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LUIS A. GONZALEZ, )

)

Petitioner, )

)

vs. ) CASE NO. 88-6056

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF )

PROFESSIONAL ENGINEERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on March 3, 1989, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Luis A. Gonzalez, pro se

7419 Sandy Bluff Road Jacksonville, Florida 32211

For Respondent: H. Reynolds Sampson

Deputy General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

INTRODUCTION

The Petitioner, Luis A. Gonzalez, was notified by the Respondent, the Department of Professional Regulation, by notice dated July 22, 1988, that he had failed the Professional Engineer Examination given on April 14-15, 1988. By letter dated November 10, 1988, Mr. Gonzalez requested a formal administrative hearing to contest the Respondent's determination.

At the formal hearing Mr. Gonzalez testified on his own behalf and offered eight exhibits. Petitioner's exhibits 2-7 were accepted into evidence.

Petitioner's exhibits 1 and 8 were rejected.

The Respondent presented the testimony of Louis Songer. Mr. Songer was accepted as an expert in wastewater civil engineering and traffic engineering. The Respondent also offered five exhibits which were accepted into evidence.

John M. Hashtak, Mr. Gonzalez's immediate supervisor, testified as a public witness.

The parties stipulated that Mr. Gonzalez will receive a passing grade for the Professional Engineer Examination if he receives one additional point.

Mr. Gonzalez filed a proposed recommended order containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto. The Respondent did not file a proposed recommended order.

ISSUE

Whether Luis A. Gonzalez earned a passing grade on the Professional Engineer Examination of April 14-15, 1988?

FINDINGS OF FACT

1. Luis A. Gonzalez took the Professional Engineer Examination administered by the Department of professional Regulation on April 14-15, 1988.

   
   

2. By notice dated July 22, 1988, Mr. Gonzalez was informed by the Respondent's Office of Examination Services that he had failed the Professional Engineer Examination.

   
   

3. Question 122 on the Principles & Practices of Engineering Examination, Form 8804, involving Civil/Sanitary/Structural engineering, provided the following:

   
   

   SITUATION:

   
   

   An old, large, retirement community apartment complex has reported sewer overflow and plumbing discharge problems. You are an engineer assigned to review the flow and sizing of the one main sanitary sewer exiting and carrying the total flow of the complex, with the objective of correcting the problem.

   Review with the manager, and inspection of the plans, reveal there are 490 residential units with an estimated continuing residence population of 1,475. Water bills are paid individually.

   
   

   REQUIREMENTS:

   
   

   NOTE: Use and-show equations for calculations. Do not use

   a nomograph or hydraulic slide rule.

   1. Citing your assumptions and sources, calculate the average, maximum, and minimum sanitary wastewater flows expected, in gallons per day, from the total complex.

   2. You measure the main sewer from the

      project and examine the plans and find it is 10" round ID, VCP, with a slope of 0.0045. Inspection leads to an estimate of n 0/015 (fair) because of age. Calculate theoretical full flow capacity and velocity with no surcharge.

   3. Calculate depth and velocity of flow for your estimated maximum

   flow rate, if you can conclude the sewer is not overloaded.

   
   

4. Mr. Gonzalez was instructed to include assumptions and citations in support of his answer to Question 122.

   
   

5. The citations included by Mr. Gonzalez in answering part (a) of Question 122, although questioned by the grader of Question 122, were adequate.

   
   

6. Mr. Gonzalez failed to list assumptions which he should have taken into account in answering part (a) of Question 122, concerning inflow, infiltration or exfiltration.

   
   

7. In answering part (a) of Question 122, Mr. Gonzalez determined "estimated flow." In calculating estimated flow, Mr. Gonzalez multiplied the population of the complex (1,475) times an estimated water use per person of 100 gallons per day. In support of Mr. Gonzalez's use of 100 gallons per person water use, Mr. Gonzalez cited the Civil Engineering Reference Manual, Fourth Edition, and the ASCE Manual on Engineering Practice No. 36. Mr. Gonzalez also provided other references at the formal hearing to support his use of 100 gallons per day.

   
   

8. The use of 100 gallons a day per person in answering part (a) of Question 122 by Mr. Gonzalez would be correct only if the problem involved a residential community. The citations used by Mr. Gonzalez indicate that 100 gallons per day is generally acceptable for residential communities or "[i]n the absence of any better basis . . . ." Question 122, however, involves an apartment complex and not a residential community. The weight of the evidence presented at the formal hearing indicates that for an apartment complex an estimated water use of 60 to 80 gallons per day per person should be used. Even some of the references provided by Mr. Gonzalez at the formal hearing support this conclusion. For example, Petitioner's exhibit 5 indicates that a wastewater flow of 67 to 79 gallons per person per day should be used for "[m]ultiple-family dwellings (apartments)." Mr. Gonzalez's use of 100 gallons per day in answering part (a) of Question 122 was incorrect.

   
   

9. Mr. Gonzalez failed to demonstrate an adequate understanding of flow in answering Question 122. Although Mr. Gonzalez demonstrated an understanding of full flow, he failed to demonstrate an understanding of partial flow.

   
   

10. Mr. Gonzalez's answer to part (b) of Question 122 was adequate.

    
    

11. Mr. Gonzalez's answer to part (c) of Question 122 was incorrect. Mr. Gonzalez did not dispute this conclusion at the forma1 hearing.

    
    

12. Mr. Gonzalez was awarded a score of 4 for his solution of Question

    122.

13. Question 122 was graded pursuant to the National Council of Engineering Examiners Standard Scoring Plan Outline (DPR Exhibit #4). This Outling provides that a grade of 4 is to be awarded under the following circumstances:

    
    

    UNQUALIFIED: Applicant has failed to demonstrate adequate

    knowledge in more than one ASPECT of one CATEGORY.

    BU. Fails to demonstrate an understanding of flow and velocity calculations for pipes flowing full or partially full; or contains multiple errors; or one part is missing or wrong with other gross or multiple errors; or the record is deficient; or in combination.

    
    

14. A grade of 5 was to awarded under circumstances similar to the circumstances for awarding a score of 4, except that a score of 5 is appropriate only if an "[a]pplicant has failed to demonstrate adequate knowledge in [only] one ASPECT of one CATEGORY."

    
    

15. The Respondent properly concluded that Mr. Gonzalez is entitled to a score of 4 for his answer to Question 122 and not a score of 5. Mr. Gonzalez failed to "demonstrate an understanding of flow . . . calculations for pipes flowing . . . partially full . . . ." His answer also "contains multiple errors" and at least "one part is . . . wrong." Finally, Mr. Gonzalez's answer to Question 122 "failed to demonstrate adequate knowledge in more than one ASPECT of one CATEGORY" as opposed to "[only] one ASPECT of one CATEGORY." [Emphasis added].

    
    

16. Question 123 of the Principles & Practice of Engineering Examination, Form 8804, involving Civil/Sanitary/Structural engineering, includes parts (a) through (j). Mr. Gonzalez questioned parts (b), (d) and (e) of Question 123. In pertinent part, Question 123 provides the following:

    
    

    SITUATION:

    In a detailed study of traffic flow on one lane of a 2-lane urban freeway, the following data were collected:

    Average Distance between

    the front bumper of successive vehicles 75 feet

    Space Mean Speed = 33 mph Time Mean Speed = 32 mph

    
    

    REQUIREMENTS:

    (b) Determine the traffic density.

    1. Assuming that the 30th highest hourly volume is to be used for design purposes on this highway, what is a reasonable estimate of the 30th highest hourly volume in one direction on this facility? Briefly justify any assumptions made.

    2. Determine the most widely accepted value of the capacity of a freeway lane operating under ideal conditions of uninterrupted flow.

    
    

17. Mr. Gonzalez was instructed to include assumptions and citations in support of his answer to Question 123.

    
    

18. Mr. Gonzalez answered part (b) of Question 123 by calculating a density of 70.40. The grader of Question 123 circled this answer and wrote "DECIMAL." The Respondent agreed at the formal hearing that the use of decimals by Mr. Gonzalez was insignificant.

    
    

19. In answering part (d) of Question 123 Mr. Gonzalez failed to include adequate assumptions. Although the statements made by Mr. Gonzalez in answering part (d) of Question 123 are correct, his equation is wrong. Mr. Gonzalez did not offer adequate proof at the formal hearing that his response to part (d) of Question 123 was correct.

    
    

20. In answering part (e) of Question 123 Mr. Gonzalez assumed a capacity of 2,000 cars per hour. The grader of Question 123 indicated that this capacity is an "obsolete value."

    
    

21. The Solutions to be used in grading the Professional Engineer Examination and, in particular, Question 123, indicates the following:

Based on the 1985 Highway Capacity Manual or other similar sources, the capacity of a multi-lane freeway lane operating under ideal conditions is 2,000 vehicles per hour. ANSWER

Although Mr. Gonzalez's answer to part (e) of Question 123 is consistent with this solution, the capacity of a multi-lane freeway lane operating under ideal conditions, based on the 1985 Highway Capacity Manual is actually 2,800 vehicles per hour and not 2,000 vehicles per hour. The answer to part (e) of Question

123 provided in the Solutions used by graders of the Professional Engineer Examination and Mr. Gonzalez's answer are therefore incorrect. The Solutions provided to graders are to be used only to assist graders and are not binding on them. Although Mr. Gonzalez's answer to part (e) of Question 123 is consistent with the Solutions provided, the answer is incorrect. Therefore, the grader properly took into account Mr. Gonzalez's incorrect solution to part (e) of Question 123. Even if Mr. Gonzalez is given credit for his response to part (e) of Question 123, his grade for Question 123 will not change.

1. Mr. Gonzalez correctly answered parts (a)-(c) and (f)-(j) of Question

   123.

   
   

2. Mr. Gonzalez was awarded a score of 8 points for his answer to

   Question 123.

3. Question 123 was graded pursuant to a Six Level Item Specific Scoring Plan (155P). The Plan provides that a grade of 8 is to be awarded under the following circumstances:

   
   

   CLEARLY QUALIFIED: All categories satisfied with at least one at a higher than minimum level.

   Correct approach but a solution with math errors or answers outside allowable tolerances for parts (d), (e), and (h) or

   An [sic] slightly incomplete solution.

   
   

4. The next highest grade which can be awarded for Question 123 is 10 points, the maximum award possible for Question 123. Ten points are to be awarded under the following circumstances:

   
   

   HIGHLY QUALIFIED: All categories satisfied. -Presentation -may lack in completeness or equations, diagrams, orderly steps in solution, etc. Results within allowable tolerance.

   Correct approach and correct solution within allowable tolerances for parts (d), (e), and (h) and correct interpretation of results.

   All parts complete.

   
   

5. The Respondent properly concluded that Mr. Gonzalez is entitled to a score of 8 for his answer to Question 123 and not a score of 10. Mr. Gonzalez did not satisfy all categories and he failed to arrive at the "correct solution within allowable tolerances for parts (d), [and] (e) . . . " in answering Question 123. Mr. Gonzalez failed to prove that he should have been awarded a score of 10 for Question 123.

   
   

6. Mr. Gonzalez failed to prove that he should be awarded an additional point on the Professional Engineer Examination of April 14-15, 1988.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987).

   
   

8. Section 471.015, Florida Statutes, provides, in pertinent part, the following:

   
   

   1. The department shall `license any applicant who the board certifies is qualified to practice engineering and who has passed the licensing examination. [Emphasis added].

      
      

9. During the formal hearing, Mr. Gonzalez and John M. Hashtak, Mr. Gonzalez's immediate supervisor suggested that Mr. Gonzalez should be given the one additional point necessary for Mr. Gonzalez to pass the Professional Engineer Examination of April 14-15, 1988, because Mr. Gonzalez is, in fact, a

   competent engineer qualified to practice engineering. Section 471.015(1), Florida Statues, specifically requires the Board of Professional Engineers to certify applicants only if they are qualified to practice engineering and have passed the licensing examination. Therefore, the evidence in this proceeding must prove that Mr. Gonzalez was entitled to a passing grade on the Professional Engineer Examination.

   
   

10. In order to conclude that Mr. Gonzalez passed the Professional Engineer Examination, Mr. Gonzalez must prove that he is entitled to one additional point on the Professional Engineer Examination. Mr. Gonzalez had the burden of proving, by a preponderance of the evidence, that the grade he received on the Professional Engineer Examination was erroneous, that he actually passed the Professional Engineer Examination and that the Respondent arbitrarily and capriciously failed to give him the grade he was entitled to. Department of Transportation v. J.W.C. Co., Inc., 390 So.2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977); and Glaser v. Pepper, 155 So.2d 383 (Fla. 1st DCA 1963).

    
    

11. The evidence in this case proved that the grades awarded by the Respondent to Mr. Gonzalez were not erroneous. Mr. Gonzalez has failed to prove that he should have been awarded an additional point. Mr. Gonzalez has, therefore, failed to prove that he passed the Professional Engineer Examination or that the Respondent was arbitrary or capricious in failing to award him a passing grade.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Engineers issue a final order concluding that

Luis A. Gonzalez's grade on the Professional Engineer Examination of April 14- 15, 1988, was a failing grade.

DONE and ENTERED this 6th day of April, 1989, in Tallahassee, Florida.

LARRY J. SARTIN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 1989.

APPENDIX Case Number 88-6056

Mr. Gonzalez has submitted a letter dated March 21, 1989, containing proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact

which have been rejected and the reason for their rejection have also been noted.

The Respondent did not file a proposed recommended order. Mr. Gonzalez's Proposed Findings of Fact

Paragraph Number in Recommended Order of Acceptance or Reason for Rejection Paragraphs 1-2, 6 Not proposed findings of fact.

Paragraph 3 The first sentence is a statement of the issue concerning Question

122. The second and third sentences are not supported by the weight of the evidence. The Florida Department of Environmental Regulation established water per day usage is for regulatory purposes and not necessarily consistent with the engineering principles to be used in answering questions on the Professional Engineer Examination. References which should have been used in answering Question 122 indicate that a water use rate of 67 to 79 gallons per day should have been used for apartments. The letter referred to was not accepted into evidence and can not form any basis for a finding of fact.

Paragraph 4 The first and fifth sentences are accepted in findings of fact 20 and 21. The second and fourth sentences are not relevant to this proceeding. The third sentence is based upon a letter apparently received after the formal hearing. It cannot be taken into account in this proceeding. The sixth sentence is not supported by the weight of the evidence. The grader used the correct information and not "personal conviction."

Although it is true that Mr. Gonzalez used the most recent data he was aware of concerning vehicles per hour, the fact remains that the value he used at the time of the examination was incorrect.

Paragraph 5 Not supported by the weight of the evidence.

Mr. Gonzalez included two references with his letter of March 21, 1989, which were not offered at the formal hearing. Those references cannot be relied upon in this case and have played no part in making the findings of fact and conclusions of law in this Recommended Order.

COPIES FURNISHED:

H. Reynolds Sampson Deputy General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Luis A Gonzalez

7419 Sandy Bluff Drive Jacksonville, Florida 32211

Kenneth Easley General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Allen R. Smith, Jr.

Executive Director

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 88-006056

Orders for Case No: 88-006056