STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARTIN MARQUEZ, )

)

Petitioner, )

)

vs. ) CASE NO. 93-4472

)

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a formal hearing in the above- styled case on November 17, 1993, in Tampa, Florida.

APPEARANCES

For Petitioner: Martin Marquez, pro se

5412 Walstone Court

Tampa, Florida 33624

For Respondent: Vytas J. Urba, Esquire

Department of Business and Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUES

Whether Petitioner should receive a higher grade on two questions in the October 19, 1992 examination for licensure as a professional engineer.

PRELIMINARY STATEMENT

By Formal Hearing Petition dated July 28, 1993, Martin Marquez, Petitioner, challenges the deduction in grade he received on one question on the October 19, 1992 examination for licensure as a professional engineer. However, at the hearing Petitioner also challenged the grade he was given on another problem in this same examination. As grounds for the challenge to question 124 it is alleged that the initial calculations done on this problem by Petitioner were correct but in transposing one of the initial calculations to a later part of the problem an error in copying this former answer was the sole reason for any deduction and Petitioner contends a two-point deduction for such an error is excessive. Petitioner further contends that on problem 120 in performing the calculations he added two figures together rather than subtracting one from the other; that this error was committed twice; and that his grade should not receive a deduction for both errors.

At the hearing Petitioner called two witnesses, including himself, Respondent called two witnesses and nine exhibits were admitted into evidence. The facts are not in dispute. Accordingly, proposed findings submitted by Respondent are accepted. Having fully considered all evidence presented, I submit the following.

FINDINGS OF FACT

1. On the October 1992 examination for licensure as a Professional Engineer Petitioner received an overall grade of 69.1 on Principles and Practice. An overall grade of 70 is required to pass the examination.

   
   

2. The examination for Professional Engineer is a national examination prepared and graded by the National Council of Engineering Examiners (NCEE).

   
   

3. On question 124 Petitioner calculated an angle to be 25.717 degrees correctly but when this angle was used to solve a latter part of the problem it was transposed as 21.717 degrees. The calculation performed with the transposed number was correct but because of the use of the wrong number of degrees the final answer was incorrect.

   
   

4. On question 124 Petitioner received a score of 8 out of a possible 10. Petitioner contends he should have received a score of 10.

   
   

5. The Final Scoring Plan for problem 124 provides that a score of 10 demonstrates applicant is

   
   

   EXCEPTIONALLY COMPETENT (It is not necessary that the solution be perfect.) Correct approach to horizontal curve geometry and coordinate computations. All answers to the nearest plus or minus 0.01 foot.

   To receive a grade of 8 the scoring plan provides: MORE THAN MINIMUM BUT LESS THAN EXCEPTIONAL

   COMPETENCE. Generally correct approach to the problem solution, but a solution with one math error or one error in logic or a solution with answers outside of the plus or minus 0.01 foot range or correct solution to parts (b) and (c) only.

   
   

   It was in part (c) of the problem that Petitioner transposed the wrong angle.

   
   

6. All of the answers produced by the approximately 1000 applicants who took question 124 were graded by one grader. When Petitioner requested this grade be reviewed it was sent back to NCEE where the Petitioner's answer again received a grade of 8.

   
   

7. The grading system for all of the problems on the NCEE examinations are on a scale of 0-10 at two-point intervals. There are no odd numbered scores given on any question.

8. Problem 120 which Petitioner also challenges involved calculating the cost of fill material received from two separate sources with different distances to haul, different prices per cubic yard, and with the fill having different void ratios. Petitioner's calculations were accurate except that in his calculations Petitioner added two figures together rather than subtracting one from the other as he should have done. This was done twice in solving this problem causing an error of nearly twice the cost differential analysis (from

   $298,000 to $580,000).

   
   

9. Petitioner's expert witness opined that the maximum deduction of two points in problem 124 was excessive; however, he concurred that the nationwide examination prepared and graded by NCEE is the best solution to qualifying Professional Engineers.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

11. Section 471.011(2), F.S., provides for the Department to purchase these [PE] examinations from NCEE or a similar organization.

    
    

12. Section 471.015, F.S., requires an applicant for licensure to pass the licensing examination before becoming licensed.

    
    

13. In these proceedings the Petitioner is required to prove, by a preponderance of the evidence, that he actually passed the licensing examination and that Respondent capriciously and arbitrarily failed to give Petitioner the grade he earned, but instead gave him a failing grade. Florida ex rel Glazer v Pepper, 155 So.2d 383, 388, (Fla. 1st DCA 1963). Petitioner has failed to sustain this burden.

    
    

14. Petitioner has also failed to show that NCEE graded the challenged questions arbitrarily or that NCEE's denial of credit for either of those challenged questions was devoid of logic or reason. Topp v Board of Electrical Examiners for Jacksonville Beach, 101 So.2d 583, 588 (Fla. 1st DCA 1958).

    
    

15. Further, with respect to problem 124, Petitioner failed to show that his answer met these plus or minus 0.01 foot accuracy required to get a 10 on this problem.

    
    

16. From the foregoing it is concluded that Petitioner has failed to prove, by a preponderance of the evidence, that he should have been given a passing grade on the October 1992 examination for licensure as a professional engineer.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That a final order be entered dismissing the challenge by Martin Marquez to the final grade he was given on the October 1992 examination for licensure as a professional engineer.

DONE AND RECOMMENDED this 4th day of January, 1994, in Tallahassee, Leon County, Florida.

K. N. AYERS 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 4th day of January, 1994.

COPIES FURNISHED:

Vytas J. Urba

Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Martin Marquez

5412 Walstone Court

Tampa, Florida 33624

Jack McRay

Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Angel Gonzalez Executive Director

Department of Business and Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 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: 93-004472

Orders for Case No: 93-004472