STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID L. ADAMS, )

)

Petitioner, )

)

vs. ) CASE NO. 90-5730

)

BOARD OF PROFESSIONAL )

ENGINEERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on March 17, 1992, in Miami, Florida.

APPEARANCES

For Petitioner: Jules A. Townsend, Esquire

8900 S. W. 107th Avenue Suite 206

Miami, Florida 33176

For Respondent: Vytas J. Urba, Esquire

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUES

Whether petitioner should be allowed to retake only the engineering economics portion of part 1 of the April 1990 examination for licensure as a professional engineer and have that grade added to his score previously received on other portions of the examination or, if this is unacceptable, whether his examination should be regraded excluding the economics portion.

PRELIMINARY STATEMENT

By notice dated July 25, 1990, the Department of Professional Regulation on behalf of respondent, Board of Professional Engineers, advised petitioner, David

L. Adams, that he had received a 67.0, or a failing grade, on the fundamentals portion of the April 1990 professional engineer examination. Thereafter, petitioner requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes (1991), to contest his grade. As a ground, petitioner contended that he was not allowed to use a reference book containing interest tables on the economics portion of the examination. The matter was referred by respondent to the Division of Administrative Hearings (DOAH) with a request that a Hearing Officer conduct a formal hearing. Thereafter, petitioner agreed to sign a stipulation allowing him to retake the examination without charge in lieu of an evidentiary hearing. As a result of that proposed stipulation, the files of the Division of Administrative Hearings were closed by order dated March 28, 1991.

After petitioner failed to execute the stipulation, the matter was again referred by respondent to DOAH on February 21, 1992, with a request that the case be reopened and a Hearing Officer be assigned to conduct a hearing. By order dated February 25, 1992, the case was reopened and a final hearing was scheduled on March 17, 1992, in Miami, Florida. On March 16, 1992, the case was transferred from Hearing Officer William J. Kendrick to the undersigned.

At final hearing, petitioner testified on his own behalf. Also, he offered petitioner's exhibit 2 which was received in evidence. A copy of the exhibit was late-filed on April 20, 1992. Respondent presented the testimony of Joseph

1. Klock, a DPR examination specialist and accepted as an expert in psychometrics, and C. Jeanne Smith, a DPR examination supervisor. Also, it offered respondent's exhibits 1-4. All exhibits were received in evidence. By agreement of the parties, joint exhibits 1 and 2 were received in evidence. Finally, the undersigned took official recognition of Rule 21H-21.011, Florida Administrative Code.

   
   

   The transcript of hearing was filed on April 6, 1992. Proposed findings of fact and conclusions of law were filed by petitioner and respondent on April 3 and 16, 1992, respectively. A ruling on each proposed finding is made in the Appendix attached to this Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   Based upon all of the evidence, the following findings of fact are determined:

   
   

   1. On April 19, 1990, petitioner, David L. Adams, was a candidate on the fundamentals of engineering portion of the examination for licensure as a professional engineer. The examination consists of two parts and Adams had previously passed the other part of the examination some three years earlier. The test was administered by the Department of Professional Regulation (DPR) on behalf of respondent, Board of Professional Engineers (Board). On July 25, 1990, DPR issued a written uniform grade notice advising petitioner that he had received a scale grade of 67.0 on the examination. A scale grade of 70 is necessary to pass this part of the examination.

      
      

   2. During the April and October 1989 examinations, the examinees were allowed to use engineering reference books during the course of the examination. After the October examination, the Board decided that those reference books containing problems and solutions could no longer be used by the candidates. Accordingly, in January 1990 the Board mailed to each candidate, including Adams, a candidate information booklet containing general information and instructions pertaining to the examination. Among other things, the booklet provided the following advice relative to the use of reference materials that could be taken into and used by candidates on the open book examination:

      
      

      This is an open book examination. Candidates may use textbooks, handbooks, notes, and reference materials which are bound, copyrighted and printed. The term "bound" refers to material that is bound permanently, hard or paperback stitched or glued, or spiral, plastic or three-ringed bound. The printed material must remain contained (bound) in its cover during the entire examination. No writing tablets, unbound tablets or unbound

      "loose notes" will be allowed. No books with contents directed toward sample questions or solutions of engineering problems are permitted in the examination room. Examinees are not permitted to exchange reference materials or aids during the examination. (Emphasis in original)

      
      

      According to a Board witness, in December 1989 the Board mailed an addendum (in the form of a letter) to each prospective candidate advising him or her that materials containing problems and solutions could not be used. The letter itself was not introduced into evidence and petitioner denies that he received a copy.

      
      

   3. The examination was given at the Radisson Hotel Center in Miami, Florida. Petitioner was one of 234 candidates taking the examination in an upstairs examination room. The test lasted one full day. The room was divided into eighteen so-called stations, with a proctor in charge of each station. Petitioner sat at station 5 near the front of the room.

      
      

   4. The morning session of the examination in question began at 8:43 a.m. on April 19, 1990. Around 7:30 a.m., Jeanne Smith, the examination supervisor in the upstairs room, read the addendum (letter) to the candidates. Among other things, she specifically stated that the textbook entitled Engineer In Training Review Manual, Sixth Edition, by Michael R. Lindeburg could not be used during the examination. Adams heard this announcement. Also, prior to the commencement of the examination, Smith posted on a bulletin board at the front of the room photocopies of the front page of various engineering textbooks with a "yes" or "no" printed on the page to signify whether it could be used by a candidate during the examination. The front page of the textbook by Lindeburg had a "no" written on it because the book cover indicated it contained "378 solved example problems." As it turned out, this was the textbook which Adams brought to the examination so that he could use the interest tables contained therein to solve the economics problems.

      
      

   5. Because many candidates needed to use the interest tables in excluded textbooks, Smith telephoned her supervisor in Tallahassee at 10:00 a.m., and based on that conversation, made an announcement at 10:43 a.m. over the public address system that candidates could tear the interest tables out of unapproved textbooks and use them during the examination. Petitioner claims he did not hear the announcement because he was engrossed in the examination. However, prior to the examination beginning, petitioner noticed other students removing pages from their textbooks and he asked a proctor for written permission to remove the interest tables from the Lindeburg textbook. He did so because an instruction in the candidate information booklet provided that "(t)he printed material must remain contained (bound) in its cover during the entire examination" and he feared he would violate that instruction by tearing out the pages. The proctor declined to give Adams written permission to do so. The record is unclear as to whether she gave oral permission for Adams to remove the pages but in any event Adams opted not to remove the interest tables from the book since he believed that, without written permission, he would be in violation of the instruction.

      
      

   6. There were sixteen multiple choice questions on the examination pertaining to economics. This represented approximately 8% of the total of 210 questions on the examination. Adams asserted that the interest tables were necessary to complete the economics portion of the examination. This was not

      contradicted. Near the end of the examination, petitioner simply guessed at each economics question since there was no penalty for incorrect answers. There was no showing by petitioner that had he used the interest tables, he would have obtained the correct answer for any of the economic problems.

      
      

   7. Petitioner, who is a civil engineer, is 59 years of age and plans to retire at age 63. By passing the professional engineer examination, his salary and retirement benefits would be substantially enhanced. He spent some five years studying at night for this part of the examination and does not desire to devote additional years of effort to retake the complete portion of the examination. Instead, he desires to be allowed to retake the economics portion of the examination and have that grade added to his April 1990 examination score, or in the alternative, have his examination regraded, excluding the economics part. He considers the Board's offer to retake the examination free of charge (which would save him only $50) an undesirable alternative.

      
      

   8. Respondent established that while it is possible to regrade one section (economics) of the examination and combine that score with the scores on sections already taken in April 1990, such a procedure would not be psychometrically sound nor fair to other candidates. It would also be unfair and unreasonable to regrade the examination excluding the economics problems because the examination is a uniform examination given to candidates throughout the United States and would result in Adams being graded on an examination with different content from all other candidates. Accordingly, the only appropriate rememdy for Adams, and one which is consistent with prior Board practice, is to allow him to retake the examination without charge.

      
      

      CONCLUSIONS OF LAW

      
      

   9. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes (1991).

      
      

   10. As the petitioner in this cause, Adams bears the burden of proving by a preponderance of the evidence that he is entitled to the requested relief. See, e. g. Fla. Department of Transportation v. J. W. C. Company, Inc., 396 So.2d 778, 789 (Fla. 1st DCA 1981).

       
       

   11. Petitioner has demonstrated that there were "irregularities" during the administration of the examination given on April 19, 1990. Based upon these irregularities, he asks that he be allowed to retake only the economics portion of the examination and have that grade added to his prior score, or in the alternative, that his examination be regraded excluding the economics portion of the test.

       
       

   12. This case is factually similar to the case of Blackburn v. Board of Professional Engineers, 13 FALR 2074 (Board of Professional Engineers, April 16, 1991). In that case, a candidate on the same examination learned on the morning of the examination that he could not use the Sixth Edition of the textbook by Lindeburg during the examination. However, other candidates with different textbooks containing problems and solutions were allowed to use them as reference books during the examination. Even though the examination was unfairly administered in that respect, the Board held that it was necessary for Blackburn to show that if he had been allowed to use the reference book, he would have received a passing grade. Otherwise, he was only entitled to retake the examination free of charge. Id. at 2080. This relief was deemed to be the most reasonable since it protects the public from unqualified persons being

       licensed without further examination while at the same time does not penalize the examinee. Applying this rationale to the case at bar, it is concluded that Adams is entitled only to retake the examination at no charge. Cf. Jones v.

       Department of Professional Regulation, Board of Acupuncture, 524 So.2d 700 (Fla. 1st DCA 1988)(if the instructions to a portion of an examination are misleading and insufficient, the remedy is to allow those persons who failed the examination due to misleading instructions to retake that portion of the examination without charge). While this is of little consolation to petitioner, it is noted that all candidates taking the April 1990 examination were subjected to the same confusion and chaos and the same rules regarding use of reference materials. This being so, petitioner's request should be denied.

       
       

   13. In reaching the above conclusion, the undersigned has considered petitioner's contention that various Board rules dictate a different result. 1/ It is noted that most, if not all, of the following arguments were raised by Adams for the first time in his proposed recommended order. As to the argument that rule 21H-21.001 provides for an open book examination, and respondent's refusal to allow the use of the questioned textbook was a violation of the rule, it is noted that Adams was given specific notice in January 1990 that the Board intended to apply its rule in such a manner as to exclude those textbooks containing problems and solutions. Adams also contends that rule 21-11.006(1) was violated when Smith made an oral announcement allowing certain pages to be removed from reference books. That rule requires all examination instructions to be given to the candidates in written form. However, such an interpretation would effectively prevent the Board from making any announcements during the course of the examination for the purpose of clarifying the written instructions. Indeed, the announcement in question was simply a clarifying statement intended to aid the candidates. Finally, Adams points to rule 21- 11.007(2) which provides that anyone who subverts the examination process may have his examination withheld. Adams reasons that he may have been subjected to sanctions if he removed the interest tables from his book. However, given the fact that the supervisor had openly announced that interest tables could be removed from the excluded books, it can hardly be said that by doing so a candidate would "subvert" the examination process and be disqualified. Adams' failure to hear the announcement does not alter this conclusion. The remaining arguments have been considered and are deemed to be without merit.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board enter a final order confirming petitioner's

grade of 67 on part 1 of the April 1990 examination and authorizing him to retake the next examination at no charge.

DONE AND ENTERED this 24th day of April, 1992, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

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 24th day of April, 1992.

ENDNOTES

1/ It is presumed that with one exception (rule 21H-21.001), Adams has relied upon the rules that were in effect in April 1990. The rules were then a part of chapter 21-11. They have since been renumbered as chapter 21H-21.

APPENDIX TO RECOMMENDED ORDER

Petitioner:

1. Partially adopted in findings of fact 1,2,4 and 5.

2. Partially adopted in findings of fact 2 and 8.

3. Partially adopted in findings of fact 2 and 4.

Respondent:

1. Partially adopted in finding of fact 1.

2. Partially adopted in finding of fact 2. 3-4. Partially adopted in finding of fact 4. 5-6. Rejected as being unnecessary.

1. Covered in the preliminary statement.

2. Partially adopted in finding of fact 8.

Note - Where proposed findings have been partially adopted, the remainder has been rejected as being unnecessary, cumulative, irrelevant, subordinate, or not supported by the evidence.

COPIES FURNISHED:

Vytas J. Urba, Esquire

1940 North Monroe Street, Suite 60

Tallahassee, FL 32399-0792

Jules A. Townsend, Esquire

8900 S.W. 107th Avenue, Suite 206

Miami, FL 33176

Angel Gonzalez, Executive Director Board of Professional Engineers 1940 North Monroe Street Tallahassee, FL 32399-0792

Jack L. McRay, Esquire

1940 North Monroe Street, Suite 60

Tallahassee, FL 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-005730

Orders for Case No: 90-005730