STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

YOGESH MANOCHA, )

)

Petitioner, )

)

vs. ) CASE NO. 96-660

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

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, formal hearing was held on June 18, 1996, in Tallahassee, Florida, before Ella Jane P. Davis, a duly assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: William Leffler, III, Esquire

2000 North Meridian Road Apartment 312

Tallahassee, Florida 32303

For Respondent: R. Beth Atchison, Esquire

Department of Business and Professional Regulation

Board of Professional Engineers 1940 North Monroe Street Tallahassee, Florida 32399-0750

STATEMENT OF THE ISSUE

Is Petitioner entitled to additional credit on the Professional Engineer Licensure Examination sufficient to receive a passing score?

PRELIMINARY STATEMENT

This cause was referred to the Division of Administrative Hearings upon several challenged examination questions or challenged parts of questions on the April, 1995 Professional Engineer Examination. Prior to formal hearing, Petitioner abandoned his challenge to questions 115 and 119, limiting the scope of formal hearing to question 417, parts one and ten.

Respondent stipulated that Petitioner would be given credit for subpart ten of question 417 of one raw point. Therefore, it only would be necessary for Petitioner to demonstrate his entitlement to one additional point in order to pass the examination.

Petitioner testified on his own behalf and presented the oral testimony of Ramesh Menon. He had eight exhibits admitted in evidence.

Respondent presented the oral testimony of Benjamin Keith Harrison and Joseph Allen Klock, and had ten exhibits admitted in evidence.

Because this case involves professional examination questions and answers which are confidential under Section 455.229(2) F.S., the exhibits and transcript, filed July 18, 1996, were sealed by agreement, subject only to examination by the attorneys of record, as officers of the court, and the undersigned. The transcript and exhibits will be returned, resealed, to the Board of Professional Engineers with this Recommended Order.

The parties of record agreed to the sealing of their posthearing proposals as well but then filed these with the Clerk of the Division of Administrative Hearings without any notification for sealing. The Clerk filed the originals in the Division case file. By this order the undersigned instructs the Clerk to seal the Division file.

The timely filed proposed findings of fact, filed August 12 and 13, 1996, respectively, have been considered in completion of this recommended order.

FINDINGS OF FACT

1. By the stipulations recited in the preliminary statement, Petitioner needed only to demonstrate entitlement to one raw point in order to achieve an adjusted score of 70 (raw score of 48) so as to pass the Florida Professional Engineer

   Examination, created and administered by the National Council of Examiners for Engineers and Surveyors.

   
   

2. The disputed part of the challenged question dealt with the equations necessary to calculate the amount of excess air applied to a combustion source that produced flue gas which contained specified concentrations of oxygen, carbon dioxide, carbon monoxide, and nitrogen. This presents a chemical engineering problem.

   
   

3. Subpart one of the question provided four reaction equations. Petitioner selected answer "E". The Board claims another answer is the correct answer.

   
   

4. Subpart one of the question required that the examinee select an answer showing the minimum number of equations needed to solve the problem. The answer designated by the Board contained two equations. The answer selected by Petitioner contained three equations.

   
   

5. Petitioner, Petitioner's Professional Engineer expert in combustion, and the Board's Professional Engineer expert in chemical engineering all recognized that the problem could be appropriately solved either by the Orsat method or the Board's preferred method.

   
   

6. However, Petitioner and his expert maintained that the Board's preferred method was less precise than the Orsat method because the Board's method was based on a presumption of complete oxygen combustion or theoretical oxygen. Petitioner based his analysis on the concept that the problem's acknowledgment of the presence of carbon monoxide indicated incomplete combustion and rendered the calculation of air indeterminate.

   
   

7. The determination of excess air is covered in five standard reference books authorized for use on the examination. All these books recognize the Orsat equation for the calculation of excess air with respect to incomplete combustion. Petitioner utilized the Orsat equation.

   
   

8. The Orsat formula is appropriate for solving the question, but it is derived from three equations.

   
   

9. Petitioner and his expert contended that subpart one of the question was both a trick question and that the Board was requiring an incorrect answer because the examinee obtained a

   correct answer to subpart ten of the question by the Orsat approach and that when subpart ten is solved by the Board's preferred method, an incorrect answer was obtained. This testimony was not persuasive in light of the apparent agreement of Petitioner that the correct numerical answer would be closer to the Board's preferred numerical answer than to his own numerical answer. (TR110112). Nor does it necessarily follow that because the Board has conceded that Petitioner's answer to subpart ten was correct, that concession automatically renders his answer to subpart one correct.

   
   

10. As explained more reasonably by Dr. Benjamin Keith Harrison, a professor of chemical engineering at the University of Alabama, there were at least two correct ways to work the problem related to an analysis of incomplete combustion. The Orsat method uses carbon dioxide while the Board's preferred method uses a different chemical "tie" element to compare the theoretical oxygen required to the amount of oxygen actually in the system. The examinee is free to choose the method (i.e. tie element) he prefers. The Orsat formula, chosen by Petitioner, is entirely correct to do that, and the numerical answer the Petitioner got in subpart ten was within acceptable limits. However, the equations the Petitioner indicated in the other part of his answer were not those used to derive the Orsat formula. (TR8288)

    
    

11. More succinctly, according to Dr. Harrison, the examinees were free to use either the Orsat formula or the Board's preferred formula to get subpart ten. Petitioner chose the Orsat formula and got a sufficiently correct answer for subpart ten. However, in subpart one, the other formula was asked for and Petitioner chose the wrong combination of three subsets. (TR89)

    
    

12. Therefore, the greater weight of the credible evidence is that the Petitioner's answer is wrong on two points: first, that his response does not indicate a minimum set of equations and two, the three equations he selected were not the equations used in deriving the Orsat formula. Likewise, items one and ten of the question request different information/responses. Part ten requests a numerical response; part one requests the selection of the minimum number of equations necessary.

    
    

13. Dr. Joseph Allen Klock, was accepted as an expert psychometrician. His statistics and the testimony of Dr. Harrison are credible and persuasive that the challenged question subpart one contained enough correct information to

    allow an examinee of minimal competency for licensure to selec tthe correct response and did not require knowledge which was beyond the scope of knowledge that could be expected from a candidate for licensure and that Question No. 417 as a whole was a fair test of the examinees' knowledge in the field of chemical engineering .

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.57(1), F.S.

    
    

15. To succeed in his challenge to the examination, Petitioner must establish, by a preponderance of the evidence, that the examination was somehow faulty; that the examination was arbitrarily or capriciously worded; that his answers to the challenged questions were arbitrarily or capriciously graded; or that he was arbitrarily or capriciously denied credit through a grading process devoid of logic or reason. See, Harac v. Department of Professional Regulation, Board of Architecture,

    484 So. 2d 1333 (Fla. 3d DCA 1986); State ex rel Glaser v. J.M. Pepper, 155 So. 2d 383 (Flat 1st DCA 1963). State ex rel J.H. Topp v. Board of Electrical Contractors for Jacksonville Beach, 101 So. 2d 583 (Fla. 1st DCA 1958).

    
    

16. That burden has not been met in this case.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is recommended that the Board of Professional Engineers enter a final order denying the Petitioner the one point at issue, and thus a passing grade on the April 1995 licensure examination.

RECOMMENDED this 3rd day of October, 1996, at Tallahassee, Florida.

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 4889675 SUNCOM 278-9675

Fax Filing (904) 9216847

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of October, 1996.

COPIES FURNISHED:

William Leffler, III, Esquire 2000 North Meridian Road Apartment 312

Tallahassee, Florida 32303

R. Beth Atchison, Esquire Department of Business and

Professional Regulation

Board of Professional Engineers 1940 North Monroe Street Tallahassee, Florida 32399-0750

Lynda L. Goodgame, Esquire General Counsel

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399

Angel Gonzalez

Executive Director

Board of Professional Engineers 1940 North Monroe Street Tallahassee, Florida 32399

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of 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: 96-000660

Orders for Case No: 96-000660