STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARK W. NELSON, )

)

Petitioner, )

)

vs. ) Case No. 98-5321

)

FLORIDA ENGINEERS ) MANAGEMENT CORPORATION, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice, in Gainesville, Florida, on March 23, 1999, by Stephen F. Dean, assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Mark W. Nelson, pro se

720 Northwest 31st Avenue Gainesville, Florida 32609

For Respondent: Natalie A. Lowe, Esquire

Board of Professional Engineers 1208 Hays Street

Tallahassee, Florida 32301 STATEMENT OF THE ISSUE

Whether Petitioner is entitled to additional credit for his responses to question numbers 21 and 24 of the Principles and Practice of Engineering Examination administered in April 1998.

PRELIMINARY STATEMENT

The Petitioner took the standardized test for licensure as a professional engineer on April 24, 1998. The Petitioner received

a grade of 69 on the examination, based upon a raw score of 47, which had a passing score of 70 or a raw score of 48. The Petitioner reviewed his examination answers and challenged two questions. The Respondent denied the Petitioner's challenge, and advised him of his right to a formal hearing. The Petitioner requested a formal hearing and the Respondent referred the case to the Division of Administrative Hearings.

The matter was noticed for hearing and heard as noticed.

The Petitioner testified in his own behalf, and called two witnesses: John Howath and Jennifer Jacobs. He introduced Exhibits 1-15 which were received into the record. The Respondent called Peter Sushinsky to testify, and introduced Exhibits A and B which were received into the record.

Both parties submitted proposed recommended orders which were read and considered.

FINDINGS OF FACT

1. Petitioner took the April 24, 1998 professional engineering licensing examination with an emphasis in civil engineering.

2. A score of 70 is required to pass the test. Petitioner obtained a score of 69.

3. In order to achieve a score of 70, Petitioner needs a raw score of 48. Therefore, Petitioner is in need of at least one additional raw score point.

4. Petitioner is challenging question numbers 21 and 24. They are both multiple-choice questions and worth one point each.

5. Exhibit 10 contains a diagram for the candidate's use in answering question numbers 21 and 24. Question 21 requires the examinee to calculate the percentage of wooded land on the diagram. The diagram contains a rectangle labeled "woodlot," and within the rectangle are three non-contiguous areas marked with schematics of trees.

6. The Petitioner reduced the percentage of wooded area to conform to the portion of the area labeled "woodlot" marked with schematics of trees.

7. In regard to question number 21, the Petitioner asserts that as a matter of convention, by failing to put the trees everywhere in the wooded lot, one may assume that there are trees only where there is a schematic of the trees.

8. The Petitioner's challenge was rejected on the basis that the scorer opined that it is standard practice that drawings are only partially filled with details, and the most reasonable interpretation of the site plan drawings is that the woodlot fills the entire area enclosed by the rectangle.

9. John Howath, a professional engineer, testified regarding accepted conventions in engineering drawings. In Howath's opinion the drawing on the examination used inconsistent methodologies and was confusing regarding whether all of the area designated by the label or "call out" of woodlot was in fact

   wooded. Both the Petitioner and Mr. Howath referred to drawings in the Civil Engineering Reference Manual which showed areas on drawings totally covered with visual indications of a particular material or condition.

10. Peter Sushinsky, a professional engineer, testified as an expert for the Respondent. Mr. Sushinsky acknowledged the Petitioner's exhibits; however, Mr. Sushinsky noted that these were only a few examples of drawings that are available.

    Mr. Sushinsky referenced construction drawings he had seen in his practice with partial "cross-hatching" just like the diagram on the examination. In sum, Mr. Sushinsky's experience was that diagram might be totally or partially "cross-hatched." In

    Mr. Sushinsky's opinion it was not a bad diagram, only subject to a different interpretation by a minor group.

11. Question number 24 asked the candidate to calculate the weir peak discharge from the catchment area using the rational formula.

12. The Petitioner asserts the question is misleading and should read, "What is the peak discharge from the watershed?" The Petitioner bases his assertion on the ground that the "rational formula" is used to compute discharge from a watershed not a weir, as mandated by the question.

13. The scorer did not address the Petitioner's concerns. The scorer stated, "It is clear from the item statement that the

    weir equation is not to be used." However, the questions ask the candidate to compute the weir discharge.

14. Jennifer Jacobs, a professor of engineering, testified regarding the rationale formula that it was used to calculate watershed discharge and not weir discharge. All experts agreed that the rational formula is not used to compute weir discharge.

15. The experts all agree that the question was confusing because the rational formula is not used to calculate the discharge from a weir.

16. The Respondent's expert justifies the answer deemed correct on the basis that if one uses the rational formula and computes the watershed discharge, one of the answers provided is close to the result.

17. The Respondent's expert calculated the watershed discharge as 230.6 cubic feet per second (cfs). The answer deemed correct was 232 cfs. The expert stated the weir attenuates flow. If the weir attenuates flow one would expect an answer less than 230.6 cfs., not an answer equal to or greater than 230.6 cfs. The amount of attenuation is based upon the physical features of the impoundment area and the mouth of the weir. Weir Attenuation varies. The only answers smaller than

    230.6 are 200 or 32. Is the 232 cfs. answer wrong because it does not allow for attenuation by the weir? How much did the weir attenuate the flow? Under these facts, the question is capricious.

18. The Respondent argues that the Petitioner didn't follow instructions while acknowledging that the "correct" answer is not the answer to the question that was asked.

    CONCLUSIONS OF LAW

    
    

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

20. As an applicant, Petitioner has the burden of proving entitlement to licensure as a professional engineer. Florida Department of Transportation v. J.W.C., Co., Inc., 396 So. 2d 778 (Fla. 1st DA 1981). He must show by a preponderance of the evidence that he is entitled to a passing score on the April 1998 Principles and Practice Examination.

21. The Petitioner must show that the questions or grading of the questions challenged were arbitrary or capricious.

22. The Petitioner showed with regard to question 21 that professional opinions and experiences differ with regard to whether the woodland consisted of all the area in the rectangle marked "woodland" by a "callout," or was limited to the portion inside the rectangle marked with trees. By definition such ambiguity constitutes a question which is arbitrary. If the diagram could mean all the area was forested and also mean only that portion with drawings of trees was forested to persons trained and experienced, then there are two potential correct

    answers. Designating one of the two answers "correct" is arbitrary.

23. The Petitioner showed that question 24 was capricious because it asked the candidate to compute the weir discharge using the rational formula. The Petitioner and two experts all agreed that the rational formula is used to compute watershed discharge. It is like asking one to compute aerodynamics lift using Boyle's Law. One cannot do it. The fact that there is a closer relationship between the formulas for weir discharge and watershed discharge is immaterial. The question is ambiguous, and the fact that one answer given is close to the result of the rational formula result for watershed of the area does not make it the correct answer for weir discharge. The reasoning that the figure given was smaller than the watershed discharge as computed by the rationale method and the weir would attenuate flow somewhat is hardly satisfactory, given there were two choices smaller than the correct answer.

RECOMMENDATION

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

RECOMMENDED:

That the Respondent enter a final order awarding Petitioner two raw points and a passing score on the Principles and Practice of Engineering Examination.

DONE AND ENTERED this 20th day of May, 1999, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

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 20th day of May, 1999.

COPIES FURNISHED:

Mark W. Nelson

720 Northwest 31st Avenue Gainesville, Florida 32609

Natalie A. Lowe, Esquire

Board of Professional Engineers 1208 Hays Street

Tallahassee, Florida 32301

Dennis Barton, Executive Director Board of Professional Engineers 1208 Hays Street

Tallahassee, Florida 32301

William Woodyard, General Counsel Department of Business and

Professional Regulation 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: 98-005321

Orders for Case No: 98-005321