STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GABRIEL D. ENRIQUEZ, )

)

Petitioner, )

)

vs. ) Case No. 98-0190

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, ) BOARD OF PROFESSIONAL ENGINEERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on April 8, 1998, in Gainesville, Florida, before Ella Jane P. Davis, a duly assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Gabriel Enriquez, pro se

3461 Southwest Second Avenue Apartment 218

Gainesville, Florida 32607

For Respondent: R. Beth Atchison, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Is Petitioner entitled to enough credit so as to have passed the professional engineering examination?

PRELIMINARY STATEMENT

This case arose by Petition for Formal Hearing filed

October 9, 1997, wherein Petitioner challenged the outcome of his examination for licensure as a Professional Engineer taken

April 18-19, 1997. Petitioner initially challenged three "possible miscorrections": one in engineering ethics; one matrix problem; and one pertaining to elongation of a metal rod. The latter two items were apparently part of a single examination question.

At the commencement of formal hearing, Petitioner elected to present evidence upon the engineering ethics question only, because he believed that on the mathematical problem(s) he had made a mistake. (TR-14-15)

Respondent Agency filed a unilateral prehearing statement as required by the Order of Prehearing Instructions. Petitioner did not. Nonetheless, without objection, Petitioner was permitted to testify and offer exhibits. He testified on his own behalf, adopted his Petition as further testimony, and had four exhibits admitted in evidence.

Respondent Agency presented the oral testimony of Frank Hutchinson and had two exhibits admitted in evidence.

A transcript was filed on May 4, 1998. A Post-Hearing Order, explaining how to prepare and file proposed recommended orders, was entered May 5, 1998. By the parties' stipulation, proposed recommended orders were to be filed by May 19, 1998. Neither party filed a proposal.

By agreement of the parties and oral order of the undersigned, all exhibits and the transcript have been kept confidential and are transmitted in a "sealed" condition to the Agency with this Recommended Order so as to protect the integrity of the professional examination and licensing process. Also, in order to maintain confidentiality of examination questions, the number of the question at issue will not be used in this Recommended Order, and "*" will be substituted therefor.

FINDINGS OF FACT

1. Petitioner took the April 18-19, 1997, Professional Engineer Licensing Examination.

2. A passing grade would have been "70." Petitioner achieved a scaled score of "68." In order to achieve a passing grade, he would have to prove entitlement to two more points per scale.

3. Question * involved engineering ethics. In a multiple choice of four possibilities, examinees were asked to determine under what conditions a professional engineer may ethically accept gift items from potential suppliers.

4. Petitioner selected the most restrictive possible answer, multiple choice answer "d," to the effect that it is never appropriate to accept any item from a supplier.

5. Petitioner took the position that if a professional engineer never accepts anything from anybody, then s/he never owes anyone anything and therefore s/he can never have his/her

   professional judgment clouded by favoritism nor can s/he be "corrupted." In support of his answer, Petitioner quoted from, and introduced, Board-approved manual sections related to the duty that registered professional engineers owe to one another.

6. Petitioner's answer was graded "incorrect" because the type of gifts specifically named in the question are not deemed prohibited in the practice of engineering. According to the grading system, multiple choice answer "c" would have been completely correct.

7. Even applying Petitioner's belief system, the Agency's expert was unable to relate the question about suppliers and the items listed in the question to the duty owed among engineers because the ethical consideration concerning the duty of one engineer to another is confined to "valuable" exchanges and the examination question referred to named items, the monetary value of which "is not significant." In the expert's opinion, Petitioner should have relied on the portions of the manual related to an engineer's duty not to solicit or accept "valuable" considerations in connection with work for clients.

8. Nonetheless, although Petitioner's answer "d" was considered technically "wrong" by the national testing service, the Agency expert testified that it still could have been "double-keyed" as a "subordinate correct alternative answer." The only reason it was not "double keyed" as a subordinate correct alternative answer is because similarly stringent

   responses from licensure candidates were minimal. (TR-39).

   
   

9. Neither witness could testify as to how much the sole question at issue herein was worth in scoring points (TR-28, 48- 50). Nobody testified how many points Question * was worth or

   
   

   whether the Question * that is at issue herein was the Question * from the morning or afternoon testing session.

10. By reference to Petitioner's scored answer sheet (Petitioner's Exhibit 4), the undersigned has determined that the question at issue was Question * of the morning session and the correct answer was worth only one additional raw point for the following reasons. As set out supra, the oral testimony and all the exhibits show that Question No. * at issue ideally should have been answered "c," and that Petitioner answered "d." The score shown on Petitioner's Exhibit 4 for the afternoon session is "26 x 2 = 52" correct answers out of 60 questions. The score sheet page shows 34 wrong answers. Arithmetic would suggest that each afternoon question was worth two raw points. However, on Question * of the afternoon testing session, Petitioner answered "c" and the grader's marks indicate that the correct answer was "d." Therefore, upon all the evidence, I deduce that the afternoon session Question * is not the question at issue here. However, on the morning session page, Petitioner's answer to Question * was "d," and it was marked wrong because the grader thought it should have been "c." The morning session answer

    sheet equates with all other evidence concerning the question and answer at issue in this cause. There were 120 questions on the morning session, for which Petitioner received 62 points on his answer sheet. For the morning session, it appears that 58 of Petitioner's answers were marked wrong. Therefore, 62 correct answers and 58 wrong answers out of a possible 120 questions, would logically indicate that each question on the morning session was worth one raw point. This is borne out by the total score for the entire examination recorded on the morning session page as "62 + 52 = 114 = 68.0 scale."

11. There is no scale provided by which to translate the raw score of 114 into 68.0.

    CONCLUSIONS OF LAW

    
    

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

13. Petitioner, as a first-time applicant for licensure, bears the duty to go forward and to prove entitlement by a preponderance of the evidence. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

14. Petitioner has taken the "high moral ground" on an ethical examination question by asserting that there is no moral distinction between small and large gifts. The examination graders and the Agency's expert have taken the more experienced

    approach engendered by "real world experience." They have recognized that the distinction among what is ethically correct, legally correct, and morally correct does not produce 100 percent congruence in the daily practice of engineering, and therefore, advertising gifts, such as those listed in the question, should be permitted without creating an ethical violation. Petitioner, who is still young and idealistic, disagrees.

15. However, even Respondent's expert conceded that Petitioner's answer could be considered subordinately correct if only more applicants had taken the higher moral ground.

16. "Real world" experience will undoubtedly render Petitioner more tolerant of his own and others' standard operating procedure or customs of the trade, but if the purpose of the ethics portion of the examination is to "weed out" future unprofessional "sharp dealers," it cannot be concluded that Petitioner was "wrong" on the ethics question as answered.

17. Harold E. Kohn is noted for saying, "Brooks become crooked from taking the path of least resistance. So do people." The path of least moral resistance should not be the barometer of a professional licensing examination.

18. Petitioner is deemed to have correctly answered the sole professional engineering question at issue here. At best, it is worth one raw point.

19. However, since Petitioner needs two points at "scale" in order to pass the examination, he has failed to demonstrate

entitlement to a passing grade.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Department of Business and Professional Regulation enter a Final Order awarding Petitioner one additional point on his examination and denying him a passing grade thereon.

DONE AND ENTERED this 26th day of June, 1998, in Tallahassee, Leon County, Florida.

ELLA JANE P. DAVIS

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 26th day of June, 1998.

COPIES FURNISHED:

Gabriel Enriquez

3461 Southwest Second Avenue Apartment 218

Gainesville, Florida 32607

R. Beth Atchison, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399

Angel Gonzalez, Director Department of Business and

Professional Regulation

Board of Professional Engineers Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399

Lynda Goodgame, Esquire Department of Business and

Professional Regulation Northwood Centre

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: 98-000190

Orders for Case No: 98-000190