STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ENRIQUE A. BORJA, )

)

Petitioner, )

)

vs. ) CASE NO. 94-3532

) DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, BOARD ) OF PROFESSONAL 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 September 19, 1994, in Miami, Florida.

APPEARANCES

For Petitioner: Enrique A. Borja, pro se

20042 Northwest 63 Court

Miami, Florida 33015

For Respondent: William M. Woodyard, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

STATEMENT OF THE ISSUES

Whether Petitioner is entitled to additional credit for his answer to Item

264 on the "Principles and Practice" part of the October 1993 Fire Protection Engineer Examination.

PRELIMINARY STATEMENT

Petitioner sat for the Fire Protection Engineer Examination that was administered by Respondent in October 1993. Petitioner did not pass the "Principles and Practice" part of the examination. He received a score of 66.30 on that part of the examination where a score of 70 is required to pass.

Petitioner thereafter timely challenged the scoring of his answer to Item 264, a question that was worth a total of ten points. Petitioner was awarded four points for his response to Item 264. Petitioner would have passed that part of the examination if he had been awarded eight or more points for his answer to Item 264.

At the formal hearing, Petitioner testified on his own behalf and introduced two exhibits, both of which were accepted into evidence. Respondent

presented the testimony of two witnesses, Joseph Arnett and Joseph Klock, and presented eight exhibits, each of which was accepted into evidence. Mr. Arnett was accepted as an expert witness in the field of engineering. Mr. Klock was accepted as an expert in the field of psychometrics.

A transcript of the proceedings has been filed. The proposed findings of fact submitted by the Respondent are adopted in material part by the Recommended Order. The Petitioner did not file a post-hearing submittal.

FINDINGS OF FACT

1. Petitioner applied for licensure as a Fire Protection Engineer with Respondent, the state agency responsible for the licensure of Fire Protection Engineers in Florida. Petitioner was required to successfully complete an examination administered by the Respondent to become licensed as a Fire Protection Engineer.

   
   

2. Petitioner sat for the licensing examination for Fire Protection Engineer administered by Respondent on October 29 and 30, 1993.

   
   

3. A score of 70 is required to pass the "Principles and Practice" part of the licensure examination. Petitioner received a score of 66.30 on that part of the examination, which is a failing grade.

   
   

4. Item 264 is a question for which a completely correct answer would have been awarded 10 points. Item 264 contained a diagram of a building and required the applicants to properly space heat or smoke detectors in the building and to justify the type of detection device used in a particular area.

   
   

5. Petitioner was awarded a total of four points for his partially correct answer to Item 264. Petitioner would have passed the "Principles and Practice" portion of the examination had he been awarded eight or more points for his answer to Item 264.

   
   

6. At Petitioner's request, his response to Item 264 was regraded by the National Council of Examiners for Engineering and Surveying (NCEES), a consulting firm utilized by Respondent to develop and score licensure examinations. When Petitioner's response to the exam was initially scored, he received a score of 4 points. The regrading of the examination did not change that score.

   
   

7. The report prepared by NCEES in conjunction with the regrading of Petitioner's answer to Item 264 stated the following 1/ in explaining the score awarded for Petitioner's answer:

   
   

   The examinee did not reference the NFPA 72 A, D, and E standards 2/ to answer the question.

   The lounge area requires heat detectors rather than smoke detectors. The smoke detectors would

   be sending false alarms and they would be disconnected to stop the alarms. The heat detectors would be more reliable. The examinee's solution did not show detectors in the corridor, locker room, and boiler room; all of which are required. The examinee's solution did not space the detectors according to

   NFPA 72.

   According to the NCEES approved scoring plan, the examinee's solution demonstrates less than minimum competence (score of 4 points).

   
   

8. Pursuant to the scoring standards that have been adopted, a score of four represents a borderline unqualified response, which is explained as being:

   
   

   Applicant has failed to demonstrate adequate knowledge in one or more categories. For example, approach may be correct but the solution is unreasonable. Significant constraints may have been overlooked. Solution is unacceptable, but marginally so.

   
   

9. Petitioner's answer to Item 264 failed to properly space detectors in his answer, failed to place detectors in the corridor, locker room, and boiler room, and incorrectly placed smoke detectors in the lounge area instead of heat detectors.

   
   

10. Petitioner did not establish that the standards used to score the examination were arbitrary, capricious, or devoid of logic.

    
    

11. Petitioner did not establish that the application of those scoring standards to Petitioner's response to Item 264 was arbitrary, capricious, or devoid of logic.

    
    

12. Item 264 is a reliable and valid test item.

    
    

13. Respondent established that Petitioner's response to Item 264 was fairly graded.

    
    

14. Petitioner is not entitled to additional credit for his response to Item 264.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

16. To successfully challenge the scoring of his answer to Item 264, Petitioner would have to establish by a preponderance of the evidence one or more of the following: (1) that the examination was faulty, (2) that the grading of his answer to the challenged question was arbitrary, capricious, or devoid of logic, or (3) that the grading process was arbitrary, capricious, or devoid of logic. State of Florida v. J.M. Pepper, 155 So.2d 383 (Fla. 1st DCA 1963); Harac v. Department of Professional Regulation, 484 So.2d 1333, 1338 (Fla. 3rd DCA 1986); Topp v. Board of Electrical Examiners for Jacksonville Beach, Florida, 101 So.2d 583 (Fla. 1st DCA 1958). Petitioner has failed to meet his burden in this proceeding.

    
    

17. Section 455.229(2), Florida Statutes, provides, in pertinent part, as follows:

    
    

    (2) . . . If an administrative hearing is held,

    the department shall provide challenged examination questions and answers to the hearing officer. The

    examination questions and answers provided at the hearing are confidential and exempt from s.

    119.07(1), unless invalidated by the hearing officer . . . .

    
    

18. Pursuant to Section 455.229(2), Florida Statutes, Respondent's Exhibits 2-7 should be sealed as confidential exhibits.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a final order that adopts the

findings of fact and the conclusions of law contained herein and which DENIES

Petitioner's challenge to the scoring of his answer to Item 264 of the October 1993 Fire Protection Engineer Examination.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 10th day of November 1994.

CLAUDE B. ARRINGTON

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 10th day of November 1994.

ENDNOTES

1/ Examination questions and answers are generally confidential. See, Section 455.229(2), Florida Statutes. The language quoted in Paragraph 7 of the Recommended Order is taken verbatim from the NCEES report. This language is included in a proposed finding of fact submitted by the Respondent.

2/ This was an open book examination. The NFPA 72 standards are reference material to which the examinees were expected to refer.

COPIES FURNISHED:

Mr. Enrique A. Borja 20042 Northwest 63 Court

Miami, Florida 33015

William M. Woodyard, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Harold D. Lewis, Esquire The Atrium, Suite 301

325 John Knox Road Tallahassee, Florida 32303

Angel Gonzalez, Executive Director Board of Professional Engineers 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 ten 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: 94-003532

Orders for Case No: 94-003532