STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MAGDALENA COSTIN, )

)

Petitioner, )

)

vs. ) Case No. 98-2584

) FLORIDA ENGINEERS MANAGEMENT ) CORPORATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on October 26, 1998, in Jacksonville, Florida, before the Division of Administrative Hearings, by its designated Administrative Law Judge, Suzanne F. Hood.

APPEARANCES

For Petitioner: William Bruce Muench, Esquire

438 East Monroe Street Jacksonville, Florida 32202

For Respondent: Natalie A. Lowe, Esquire

Board of Professional Engineers 1208 Hays Street

Tallahassee, Florida 32301 STATEMENT OF THE ISSUE

The issue to be resolved is whether Petitioner is entitled to additional credit for her response to question nos. 122 and

222 of the civil engineering examination administered on October 31, 1997.

PRELIMINARY STATEMENT

On or about February 11, 1998, the Department of Business and Professional Regulation (DBPR), Bureau of Testing, advised Petitioner Magdalena Costin (Petitioner) that she had failed the principles and practice part of the civil engineering examination. Petitioner requested an administrative hearing to challenge this determination. On June 5, 1998, DBPR referred the case to the Division of Administrative Hearings.

On July 13, 1998, the Respondent Florida Board of Professional Engineers filed a Motion to Correct Scrivener's Error in Style of Case. Said motion requested that the style of the case be changed to reflect Florida Engineers Management Corporation as Respondent. An order dated July 20, 1998, granted this request.

A Notice of Hearing scheduled the case for hearing on October 26, 1998. During the hearing, Petitioner testified on her own behalf and presented the testimony of two expert witnesses. Respondent presented the testimony of one expert witness and offered eleven (11) exhibits which were accepted into evidence.

The hearing transcript was filed on December 2, 1998.

Respondent filed its Proposed Recommended Order on November 30, 1998. Petitioner filed her Proposed Recommended Order on December 3, 1998.

FINDINGS OF FACT

1. On October 31, 1997, Petitioner took the civil professional engineering licensing examination. A score of 70 is required to pass the test. Petitioner obtained a score of 69.

2. Petitioner challenged the scoring of question nos. 122 and 222. As part of the examination challenge process, Petitioner's examination was returned to the National Council of Examiners for Engineering and Surveying where it was re-scored.

3. In the re-score process, the grader deducted points from Petitioner's original score. Petitioner was given the same raw score of 6 on question number 122; however, on question number

   222 her raw score of 4 was reduced to a 2.

   
   

4. Petitioner needed a raw score of 48 in order to achieve a passing score of 70; she needed at least three additional raw score points to obtain a passing raw score of 48.

5. Petitioner is entitled to a score of 6 on problem number

122. The solution and scoring plan for that problem required the candidate to obtain a culvert size in the range of 21-36 inches. The Petitioner incorrectly answered 3.1 feet or 37.2 inches.

She is not entitled to additional credit for problem number 122 because she answered the question with the wrong size culvert.

1. Problem number 122 required the candidate to use a predevelopment peak flow of 40 cubic feet per second (cfs). Petitioner used 58.33 cfs. She chose the maximum flow rather than the predevelopment peak flow.

2. In solving problem number 122, Petitioner chose a design headwater depth of 4.8 feet. The correct solution required a design headwater depth of 5.7 feet.

3. Petitioner made another mistake in problem number 122; she failed to check the water depth in the downstream swale.

4. Petitioner concedes she was given sufficient information to solve problem number 122. She understood what the question was asking of her. She admits that she did not compute the critical depth of the water and that she did not complete the solution.

5. Question number 222 had three parts. The candidate was required to determine the footing size, to select the reinforcing steel, and to provide a sketch for a concrete column located along the edge of a building. Petitioner understood the question and was provided enough information to solve the problem.

6. Petitioner correctly checked the footing size as required by the first part; however, she did not select the reinforcing steel or show the required sketch. Therefore, Petitioner did not complete enough of the problem to qualify for a score of 4 points. She is entitled to a score of 2 points.

7. The examination questions at issue here were properly designed to test the candidate's competency in solving typical problems in real life. The grader (re-scorer) utilized the scoring plan correctly.

8. Petitioner has been in the United States for approximately eleven years. She lived in Romania before she came to the United States. In Romania, Petitioner used only the metric system in her professional work. While she has used the English system since moving to the United States, Petitioner is more familiar with the metric system.

9. The Principles and Practice examination is an open-book examination. Petitioner took a book entitled the Fundamentals of Engineering Reference Handbook to the examination. When the proctor examined her books, she told the Petitioner she was not permitted to keep the handbook. The proctor took the handbook from the Petitioner.

10. Petitioner protested the confiscation of her reference book because she had used the same book in two previous tests. About ten minutes later, the proctor's supervisor returned the book to Petitioner. Petitioner's book was returned at least ten minutes before the test began. She was permitted to use the book during the test.

11. There is no persuasive evidence that the proctor's mistake in temporarily removing Petitioner's reference book caused her to be so upset that she failed the test. Candidates were not permitted to study their books prior to the beginning of the examination.

12. Petitioner may have been nervous when the test began. However, Petitioner received a perfect score of ten points on the first problem she worked, problem number 121.

    CONCLUSIONS OF LAW

    
    

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

14. As an applicant, Petitioner has the burden of proving entitlement to licensure as a civil/professional engineer. Florida Dept. of Trans. V. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981). She must show by a preponderance of the evidence that she is entitled to a passing score on the October 31, 1997, principles and practice examination.

15. While it is unfortunate that Petitioner's reference manual was taken from her prior to the test, the manual was returned to her within a period of ten minutes. Furthermore, she would not have been permitted to study the book prior to the beginning of the test. There was no disruption of the test proceedings due to the proctor's mistake.

16. Petitioner received a perfect score of 10 on the first problem she worked after the distraction, leading to the conclusion that any distraction she suffered due to the incident was minimal.

17. Petitioner did not follow the instructions for question number 122. She did not complete question number 222. Thus, she is not entitled to additional credit for either problem.

Her raw score for question number 122 shall remain unchanged as a score of 6. She is, however, entitled to 2 points for question number 222.

RECOMMENDATION

Based upon the findings of fact and conclusions of law, it

is

RECOMMENDED that the Board of Professional Engineers enter a

Final Order confirming Petitioner's score on the examination and dismissing the Petitioner's challenge.

DONE AND ENTERED this 13th day of January, 1999, in Tallahassee, Leon County, Florida.

SUZANNE F. HOOD

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 1999.

COPIES FURNISHED:

Natalie A. Lowe, Esquire

Board of Professional Engineers 1208 Hays Street

Tallahassee, Florida 32301

William Bruce Muench, Esquire

438 East Monroe Street Jacksonville, Florida 32202

Lynda L. Goodgame, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Dennis Bartin, President Florida Engineers Management

Corporation

1940 North Monroe Street Tallahassee, Florida 32399-0792

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: 98-002584

Orders for Case No: 98-002584