STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANCISCO A. LEE, )

)

Petitioner, )

)

vs. ) CASE NO. 89-3254

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on August 29, 1989, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Francisco A. Lee, pro se,

3885 Edgar Avenue

Boynton Beach, Florida 33436

For Respondent: E. Harper Field, Esquire

Department of Professional Regulation

Northwood Center, Suite 60 1940 North Monroe Street

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUES

Whether Petitioner is entitled to additional credit for his answer to one of the questions on the April 1988 Professional Engineers examination.

PRELIMINARY STATEMENT

Petitioner sat for the Professional Engineers examination in April 1988.

After receiving notification that he had received a failing grade on the examination, he challenged the score he was awarded for Question Number 275 of the examination.

At the final hearing, Petitioner testified on his own behalf, but presented no other testimony and presented no documentary evidence. Respondent called one expert witness and introduced three documentary exhibits. Respondent's Exhibit 1, the examination question and answer, Respondent's Exhibit 2, an excerpt from the solution pamphlet, and Respondent's Exhibit 3, the results of Respondent's reevaluation of Petitioner's answer to the examination question, were accepted

into evidence. Respondent's Exhibits were accepted into evidence as sealed exhibit because they relate to an examination made confidential by law.

No transcript of the proceedings was filed. Rulings upon the proposed findings of fact contained in the parties' post-hearing submissions may be found in the appendix to this recommended order.

Because the examination questions are made confidential by Section 455.230, Florida Statutes, the question challenged by the Petitioner will be discussed in general terms.

FINDINGS OF FACT

1. In April, 1988, Petitioner sat for the examination given by Respondent to become certified in Florida as a Professional Engineer.

   
   

2. Petitioner received a failing grade on the examination. Petitioner received a score of 46 where a score of 48 was necessary to pass the examination.

   
   

3. Following notification that he had failed the examination, Petitioner filed a timely challenge to question 275 of the examination, contending that he had been given inadequate credit for his answer. A perfect answer to question

   275 was worth 10 points. When Petitioner's answer to question 275 was first graded, Petitioner was awarded a score of 2 points. At Petitioner's request, his answer to question 275 was reevaluated. As a result of the reevaluation, Petitioner was awarded an additional two points for his answer to question 275, so that the total points awarded Petitioner for his answer to question 275 was 4 points of the possible 10 points. Petitioner contends that he should be awarded at least six points for his answer to question 275.

   
   

4. The examination questions were prepared by the National Council of Engineering Examiners, which prepares examination questions for a number of states, including the State of Florida. Question 275 required the applicant to answer the question by assuming certain data and by applying a certain formula. The question required the applicant to give the answer and to show how he arrived at the answer. The final answer to the question given by Petitioner was the correct answer to the question. However, in coming to his answer, Petitioner did not use the formula required by the question and he did not properly utilize the information given by the question.

   
   

5. The answer given by Petitioner to question 275 of the examination was only partially correct. The score Petitioner received for his partially correct answer was not arbitrarily or capriciously awarded.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57, Florida Statutes.

   
   

7. Petitioner has the burden of establishing by a preponderance of the evidence that Respondent's decision to award 4 points to petitioner for his response to question 275 constitutes arbitrary and capricious action. State ex rel. Glasser v. J.M. Pepper, et al., 155 So.2d 383 (Fla. 1st DCA 1963). Petitioner has failed to meet that burden.

8. Section 455.230, Florida Statutes, provides, in pertinent part, as follows:

Notwithstanding any other provision of this chapter, examination questions and answers shall not be subject to discovery, but may be introduced into evidence and considered only in camera in any administrative proceeding under chapter 120. ... In any subsequent administrative hearing the department shall provide challenged examination questions and answers to the hearing officer. Examination questions and answers so provided at the hearing, which are not invalidated, shall be sealed and not open to public inspection.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Respondent, State of Florida, Department of Professional

Regulation, enter a final order which denies Petitioner's challenge to question

275 of the examination. It is further recommended that the exhibits filed in this proceeding be sealed.

DONE and ENTERED this 14th day of September, 1989, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 1989.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-3254

The rulings on the proposed findings submitted on behalf of Petitioner in his letter filed September 5, 1989, are as follows:

1. The proposed findings contained in the first paragraph of the letter are rejected as being unsupported by the record and as being argument.

2. The proposed findings contained in the second paragraph of the letter are rejected as being contrary to the evidence presented at the formal hearing.

3. The proposed findings contained in the third and fourth paragraphs are rejected as being argument

The rulings on the proposed findings contained in Respondent's Proposed recommended order are as follows:

1. The proposed findings contained in the first paragraph are accepted in substance. See Paragraphs 1 and 2 of the recommended order.

2. The proposed findings contained in the second paragraph are rejected as being contrary to the evidence. See Paragraph 2 of the recommended order.

3. The proposed findings contained in the third paragraph are accepted in substance. See Paragraph 3 of the recommended order.

4. The proposed findings contained in the fourth paragraph are accepted in substance. See Paragraph 4 of the recommended order.

5. The proposed findings contained in the fifth paragraph are rejected as being subordinate to the conclusions reached.

6. The proposed findings contained in the sixth paragraph are rejected as being subordinate to the conclusions reached and as being the recitation of testimony.

COPIES FURNISHED:

Francisco A. Lee 3885 Edgar Avenue

Boynton Beach, Florida 33436

E. Harper Field, Deputy General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Kenneth E. Easley, - General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

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

1940 North Monroe Street Tallahassee, Florida 32399-0792

Docket for Case No: 89-003254

Orders for Case No: 89-003254