STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HECTOR FERNANDEZ, )

)

Petitioner, )

)

vs. ) Case No. 97-5925

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, ) BOARD OF PROFESSIONAL ENGINEERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held by video teleconference in this case on May 12, 1998, with the parties appearing at Miami, Florida, before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Hector Fernandez, pro se

4610 Southwest 135 Avenue

Miami, Florida 33175

For Respondent: Thomas G. Thomas

Assistant General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0750 STATEMENT OF THE ISSUES

Whether the Petitioner is entitled to additional credit as stated in his challenge to question 121 of the October 1996 examination for licensure.

PRELIMINARY STATEMENT

This case began on April 8, 1997, when the Department of Business and Professional Regulation (Department) received Petitioner's challenge to the examination administered in October 1996. Petitioner maintained that at least one question on his examination was scored too low by virtue of the fact that a mathematical error in one subpart of the question had rendered other answers incorrect. Petitioner maintained that the overall

presentation of his problem should have been considered, and that his responses should have received a higher score notwithstanding a mathematical error.

At the hearing Petitioner testified in his own behalf.

Frank D. Hutchinson testified on behalf of the Department. The Respondent's Exhibits numbered 1 through 6 have been admitted into evidence. All exhibits have been sealed and marked "confidential" so that their contents may not be disclosed to the public.

A transcript of the hearing has not been filed. Neither party filed a proposed recommended order.

FINDINGS OF FACT

1. Petitioner, Hector Fernandez, is a candidate for licensure by examination with the Department.

2. Petitioner seeks to be licensed as a civil engineer and took the examination administered by the Department in October 1996.

3. Petitioner received a score of 69.00 on this examination and therefore failed to achieve the minimum score required for licensure, 70.00.

4. As an unsuccessful candidate, Petitioner reviewed the examination on March 21, 1997, and timely filed the instant challenge to the scoring of his test results.

5. Question 121 on the examination required a candidate to compute two responses. As the latter response was dependent on the first calculation, Petitioner maintained that a mathematical error in the initial response would necessarily render the subsequent answer incorrect. Since Petitioner believed he had demonstrated, by virtue of his overall presentation of the problem, that he understood the material requested, he claimed his score for this question should have been higher.

6. For question 121 Petitioner received 4 of the possible

   
   

   10 points.

   
   

7. The scoring for question 121 was divided into objective levels for each point assignment available. A candidate did not have to make all mathematical calculations correctly to receive a level of competence on the question (a grade of 6).

8. However, a candidate did have to demonstrate competence within the guidelines set. In Petitioner's case, the score of 4

   reflected his failure to set forth the correct calculation needed to properly complete the question.

9. Despite Petitioner's claim that his error was minor and would have been caught in review by another engineer, the answer provided by Petitioner failed to set forth the energy balance equation (Bernoulli) needed to accurately compute the problem.

10. The question in dispute was unambiguously worded.

    
    

11. The scoring system for question 121 was logically defined and appropriately implemented.

12. The question included all information needed to correctly solve the problem posed.

13. Petitioner was entitled to use reference materials which would have included the equation needed to solve the question in issue.

14. All current techniques were considered when Petitioner's answer was reviewed and scored as insufficient to demonstrate competence.

    CONCLUSIONS OF LAW

    
    

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

16. The Petitioner bears the burden of proof in this cause to demonstrate the inaccuracy of the examination instrument or the scoring for same as it relates to his examination performance. He has failed to meet that burden.

17. In this case, the Department has shown that the examination was unambiguous. Moreover, the scoring was fairly derived to require a candidate to present information sufficient to demonstrate competence. Mr. Hutchinson's testimony as to the appropriateness of the testing instrument and scoring specifically applied to Petitioner's responses has been deemed persuasive.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Board of Professional Engineers enter a Final Order dismissing Petitioner's challenge.

DONE AND ENTERED this 29th day of May, 1998, in Tallahassee, Leon County, Florida.

J. D. PARRISH Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1998.

COPIES FURNISHED:

Angel Gonzalez, Executive Director Board of Professional Engineers Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0750

Lynda L. Goodgame, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0750

Thomas G. Thomas Assistant General Counsel

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0750

Hector Fernandez, pro se 4610 Southwest 135 Avenue

Miami, Florida 33175

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: 97-005925

Orders for Case No: 97-005925