STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RUSSELL A. FERLITA, )

)

Petitioner, )

)

vs. ) CASE NO. 92-0965

) 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, Veronica E. Donnelly, held a formal hearing in the above-styled case on August 7, 1992, in Tampa, Florida.

APPEARANCES

For Petitioner: Russell A. Ferlita, pro se

1220 LaBrad Lane

Tampa, Florida 33613

For Respondent: Vytas J. Urba, Esquire

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0750

STATEMENT OF THE ISSUE

Whether Petitioner's response to the questions on the October 1990 Florida Professional Engineers Examination were sufficient to allow him to receive a passing grade.

Whether problems in Petitioner's examination occurred which were due to the Department's change in the list of reference materials allowed into the examination room.

PRELIMINARY STATEMENT

Petitioner, Russell A. Ferlita (Ferlita), was notified by the Department of Regulation (the Department) that he failed to pass the Florida Professional Engineers Examination given in October 1990. A timely challenge was filed to two of the exam questions. In addition, Petitioner alleged that a change in the list of reference materials allowed into the examination room affected his ability to answer one of the challenged questions. After a formal hearing was requested, the case was referred to the Division of Administrative Hearings on February 13, 1992.

During the hearing, the Department presented two witnesses and filed six exhibits. Petitioner testified in his own behalf and was allowed to file exhibits post hearing because he mistakenly went to Tallahassee for the hearing. Once those exhibits were filed, the Department was given the opportunity to respond to the late-filed exhibits. As a result, the evidentiary portion of the proceedings did not close until October 12, 1992.

A transcript of the proceeding was filed on August 20, 1992. Both parties submitted Proposed Findings of Fact. Rulings on the proposed findings are in the Appendix to the Recommended Order.

FINDINGS OF FACT

1. In order to obtain licensure as a Professional Engineer in Florida, Petitioner is required to successfully complete the licensure examination.

   
   

2. Petitioner sat for the October 1990 National Engineering Licensure Exam. He received an overall score of 69.1%. A passing score for the examination was 70.0%.

   
   

3. The Professional Engineer Candidate Information Booklet advised candidates that the reference materials taken into the examination room had to be formally bound, copyrighted and published. The only exception to this rule was the Standard Building Code, which is contained in a three-ring binder.

   
   

4. On the first day of the examination, Petitioner learned that the Board of Engineers had approved the use of additional codes, standards and manuals that are bound in three ring binders during the examination. One of these newly approved references was the Highway Capacity Manual, Transportation Research Board.

   
   

5. Petitioner did not have his copy of the Highway Capacity Manual with him at the examination site because of the prior prohibition against its use during the exam.

   
   

6. Petitioner did not object to the last minute expansion of the reference materials list until after he received his test results.

   
   

7. The examination questions and answers challenged by Petitioner are Questions #124 and #425.

   
   

8. Question #124 involved a five-sided figure that contained curves in two of its sides. According to the situation given as part of the test question, this figure was a parcel of land. The engineer was required to compute the area of the parcel. The first requirement for part (a) of the question was the computation of the area of traverse ABCDEA in acres. The figure provided some of the sector measurements in feet as well as a stated radius for each curved area.

   
   

9. A review of Petitioner's calculations for part (a) reveals that he did not close the figure. Closure is required in a problem involving land boundaries. Thus, he was not able to compute the area and convert the measurement to acres, as required. Each side had to be included to obtain the proper area measurement.

10. Petitioner did not demonstrate entitlement to credit for his incorrect answer to part (a) because he did not follow the instructions or demonstrate competency in the engineering principles tested by this question.

    
    

11. The scoring plan for the examination did not provide partial credit for the incomplete calculations made by Petitioner on this portion of the exam.

    
    

12. Petitioner received full credit for part (b) of Question #124 during the original grading of the exam so that portion of the question is not in dispute.

    
    

13. Part (c) of Question #124 required the exam candidates to compute the length of curve DE in feet. The measurement for sector DE was provided in feet along with the measurement for the radius.

    
    

14. Petitioner's answer to Question #124, part (c) was 514.39 feet. The correct answer was 514.79 feet. Although Petitioner's solution is similar to the correct answer, he did not compute the length of the curve for the side DE as required by the exam instructions. Instead, he computed the central angle for the circular arc DE. Even in his computation of the central angle, Petitioner used a central angle of 58.94 instead of the correct angle of 58.99. The examination sought to test Petitioner's ability to compute the length of a curve. Petitioner ignored the instruction and used a different calculation method that was not requested. As a result, no credit was given for the wrong answer. Petitioner did not demonstrate competency in the engineering principles being tested.

    
    

15. Question #425 was a multiple-choice problem with ten parts. The responses were to be made from five alternatives for each part. Petitioner received eight of the ten possible points for the question. Only subparts (3) and (4) were answered incorrectly.

    
    

16. Petitioner did not demonstrate entitlement to credit for his incorrect answer to subpart (3) of Question #425. He did not provide evidence to support his theory that his answer "D" (1,390 gallons) was within a reasonable margin of error and should be given credit. The correct answer is "E" (1,410 gallons). The necessary calculations reveal that the actual answer is 1,408 gallons.

    
    

17. The question asks for the multiple choice selection which is "most nearly" accurate based on the information given in subpart (2). Based upon the problem itself, Petitioner's additional input regarding temperature and expansion possibilities are without merit. The problem was not solved as presented. Petitioner did not demonstrate his ability to properly calculate the amount of substance occupying a particular volume.

    
    

18. Subpart (4) of Question #425 deals with the symbols for roadway materials. The candidates were expected to select one of the listed materials as the one most likely used at a particular stage of roadway construction.

    
    

19. Petitioner was unable to reference the Highway Capacity Manual when answering this question because the original instructions in the Professional Engineer Candidate Information Booklet instructed candidates that the only three-ring binder book allowed into the exam was the Standard Building Code.

    
    

20. Although the decision prohibiting the entry of the Highway Capacity Manual into the examination room was changed prior to the exam, Petitioner was not alerted in time to have it available for his use.

21. Prior to final hearing, Petitioner contended that if he had been given sufficient notice, he could have used the Highway Capacity Manual to define the symbols in subpart (4) of Question #425.

    
    

22. At final hearing, Petitioner stated the answer could be in that manual or one of the other handbooks in the same series.

    
    

23. The Highway Capacity Manual does not contain definitions for the symbols set forth in subpart (4).

    
    

24. The Asphalt Handbook may contain such symbols. This reference would have been allowed into the examination even prior to the changed ruling on references contained in three-ring binders. The Hearing Officer was unable to find all of the symbols in subpart (4) in the pages provided by Petitioner.

    
    

25. Petitioner failed to demonstrate that the change in the Department's policy regarding references in three-ring binders affected his ability to correctly answer subpart (4) of Question #425. He should not be given credit for his incorrect response on the answer sheet.

    
    

    CONCLUSIONS OF LAW

    
    

26. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties pursuant to Section 120.57(1), Florida Statutes.

    
    

27. As a prerequisite to licensure as a Professional Engineer, Petitioner is required to pass the licensing examination. Section 471.105, Florida Statutes.

    
    

28. The Department is the agency with the authority and responsibility for administering the examination. Section 455.217, Florida Statutes.

    
    

29. Petitioner has the burden of establishing by a preponderance of the evidence that the decision to deny credit for his challenged questions constitutes arbitrary 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.

    
    

30. The evidence adduced at hearing reveals Petitioner made errors on the exam and was unable to establish competency. As a result, the Department cannot issue a license until Petitioner successfully completes the examination.

    
    

31. A review of the challenged questions demonstrates that Petitioner had some difficulty completing his solutions in the manner requested in this examination. This appears to be a situation where the exam candidate did not carefully read the questions and the instructions before beginning each required analysis. While this does not reflect on Petitioner's knowledge of engineering, it did prevent the Department and the Board from certifying that he is qualified for licensure. Petitioner did not correctly answer the questions asked or demonstrate understanding of certain engineering principles required by these questions.

    
    

32. During the hearing, it was clearly shown that Petitioner's answers to the challenged questions were correctly assessed and that the proper credit was assigned to those responses. See Topp v. Board of Electrical Examiners for Jacksonville Beach, Florida, 101 So.2d 583 (1st DCA 1958); Havoc v. Department of Professional Regulation, 484 So.2d 1333 (Fla. 3rd DCA 1986).

33. 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.

    
    

34. Based upon the determination that all of the challenged questions in this proceeding should remain valid, the challenged questions are sealed and not open to public inspection.

RECOMMENDATION

Based upon the foregoing, it is RECOMMENDED:

1. The Department should enter a Final Order which denies Petitioner's challenges to Questions #124 and #425.

   
   

2. The exhibits marked "confidential" should remain sealed and not open to public inspection.

DONE and ENTERED this 12th day of November, 1992, at Tallahassee, Florida.

VERONICA E. DONNELLY

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 12th day of November, 1992.

APPENDIX

Petitioner's proposed findings of fact are addressed as follows:

1. Accepted. See HO #2.

2. Accepted. See Conclusions of Law.

3. Accepted.

4. Accepted.

5. Accepted.

6. Accepted.

7. Accepted.

8. Accepted.

9. Rejected. Contrary to fact.

10. Rejected. Contrary to fact.

11. Accepted. See HO #6.

12. Accepted.

13. Rejected. Contrary to fact. See HO #14.

14. Accepted.

15. Accepted.

16. Rejected. Argumentative.

17. Rejected. Contrary to fact. See HO #9.

18. Rejected. Contrary to fact. See HO #15.

19. Rejected. Contrary to fact. See HO #14.

20. There was no number 20 in Petitioner's findings.

21. Rejected. It was Petitioner's responsibility to meet this burden.

1. Rejected. Improper argument.

2. Rejected. Argument as opposed to factual finding.

3. Rejected. Contrary to fact. See HO #23.

4. Rejected. Speculative and contrary to evidence.

5. Accepted.

6. Accepted, except for the disadvantage issue. Speculative.

7. Rejected. Contrary to fact.

8. Rejected. Improper summary. Argumentative.

Respondent's proposed findings of fact are addressed as follows:

1. Accepted. See HO #2.

2. Accepted. See Preliminary Statement.

3. Accepted.

4. Accepted. See HO #7.

5. Accepted. See HO #9.

6. Accepted. See HO #12.

7. Accepted.

8. Accepted. See HO #11 and #14.

9. Accepted. See HO #15.

10. Accepted. See HO #18-#19.

11. Accepted. See HO #23.

COPIES FURNISHED:

Jack McRay, General Counsel Department of Professional

Regulation

1940 North Monroe Street Tallahassee, FL 32399-0792

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

Russell A. Ferlita 1220 LaBrad Lane

Tampa, FL 33613

Vytas J. Urba, Esquire Department of Professional

Regulation

1940 North Monroe Street Tallahassee, FL 32399-07950

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 consult with 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: 92-000965

Orders for Case No: 92-000965