STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JEFFREY JAMES TARR, )

)

Petitioner, )

)

vs. ) Case No. 97-0902

)

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

)

Respondent. )

)

RECOMMENDED ORDER

An administrative hearing was conducted on May 7, 1997, in Jacksonville, Florida, by Daniel Manry, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jeffrey James Tarr, pro se

3151 State Road 21

Middleburg, Florida 33068

For Respondent: R. Beth Atchison, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner is entitled to credit for answers to two questions on the geology examination Petitioner took in August 1996.

PRELIMINARY STATEMENT

On September 9, 1996, Respondent notified Petitioner that he did not pass the written portion of the geology examination.

Petitioner timely request an administrative hearing. Respondent

referred the matter to the Division of Administrative Hearings to conduct the hearing.

At the hearing, Petitioner presented the testimony of one witness and submitted four exhibits for admission in evidence. On June 30, 1997, Petitioner timely filed a late-filed exhibit in the form of the deposition testimony of an additional witness.

Respondent presented the testimony of two witnesses and submitted four exhibits for admission in evidence.

The identity of the witnesses and exhibits, and the rulings regarding each, are set forth in the transcript of the hearing filed on June 5, 1997. Petitioner timely filed his proposed recommended order ("PRO") on July 10, 1997. Respondent timely filed its PRO on July 17, 1997.

FINDINGS OF FACT

1. Petitioner took the geology examination given on August 16, 1996. Respondent administered the examination.

2. Petitioner must pass both parts of the examination with a score of 70 to be licensed as a professional geologist. Petitioner earned a score of 85 on the portion of the examination pertaining to rules and regulations. However, Petitioner earned a score of

   69.6 on that portion of the examination pertaining to geology.

3. Credit for an answer to one additional question would result in a score of 70 on the geology portion of the examination. Alternatively, disqualification of two of the questions for which Petitioner did not receive credit would result in a passing score.

4. Petitioner challenges questions 18 and 90 on the examination. He challenges the grade given to him for an incorrect answer as well as the grade given to other candidates for a correct answer.

5. Question 18 asks the candidate to identify the best method for testing well-casing integrity. Well-casing integrity addresses breaks, ruptures, and holes in the well casing.

6. Respondent determined the correct answer to Question 18 to be D. Answer D is a televiewer log.

7. Petitioner answered B. Answer B is a caliper.

8. The correct response is answer D. Answer D provides a more complete determination of the well casing integrity than does the answer chosen by Petitioner.

9. Question 18 is a question that a candidate for licensure should be able to answer correctly. The challenged question is not beyond the scope of knowledge reasonably expected of a candidate for licensure.

10. Question 90 asks the candidate for the best method of providing permeability for the largest volume. It does not specify the conditions for performing the test because the candidate does not need to know the conditions in order to answer the question.

11. Respondent determined the correct response to be answer

    B. Petitioner selected answer D.

12. The correct response is answer B. Answer B provides a more complete answer.

13. Question 90 is a question that a candidate for licensure should be able to answer correctly. The challenged question is not beyond the scope of knowledge reasonably expected of a candidate for licensure.

    CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1). The parties were duly noticed for the hearing.

15. The burden of proof is on Petitioner. Petitioner must show by a preponderance of evidence that the examination was faulty, arbitrarily or capriciously worded or graded, or that Petitioner was arbitrarily or capriciously denied credit through a grading process devoid of logic or reason. Horac vs. Department of Professional Regulation, 484 So. 2d 1333, 1338 (Fla. 3d DCA 1986); State ex rel Glaser vs. J.M. Pepper, 155 So. 2d 383 (Fla. 1st DCA 1963); State ex rel I.H Topp vs. Board of Electrical Contractors for Jacksonville Beach, Florida, 101 So. 2d 583 (Fla. 1st DCA 1958). Petitioner failed to satisfy his burden of proof.

16. The examination was not faulty. Respondent's refusal to credit Petitioner for a correct answer to question 18 and 90 was not devoid of logic or reason. Neither the wording nor the grading of questions 18 and 90 were arbitrary or capricious.

17. The responses identified by Respondent as correct responses are supported by competent and substantial evidence. The

responses do not require unreasonable or unusual knowledge on the part of Petitioner or any other candidate that took the exam.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that Respondent enter a Final Order denying Petitioner's challenge to questions 18 and 90.

DONE AND ENTERED this 21st day of August, 1997, in Tallahassee, Leon County, Florida.

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 1997.

COPIES FURNISHED:

Lynda L. Goodgame, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

James Rimes, Executive Director Board of Geologists

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

R. Beth Atchison, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399

Jeffrey James Tarr, pro se 3151 State Road 21

Middleburg, Florida 33068

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: 97-000902

Orders for Case No: 97-000902