STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID E. ALLEY, )

)

Petitioner, )

)

vs. ) Case No. 99-2815

)

FLORIDA ENGINEERS MANAGEMENT )

CORPORATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, Mary Clark, held a formal hearing in the above-styled case on July 23, 1999, in Tallahassee, Florida.

APPEARANCES

For Petitioner: David E. Alley, pro se

4827 Springwater Circle

Melbourne, Florida 32940

For Respondent: William H. Hollimon, Esquire

Ausley & McMullen, P.A.

227 South Calhoun Street Tallahassee, Florida 32302

STATEMENT OF THE ISSUE

The issue for disposition in this proceeding is whether Petitioner is entitled to a passing grade on the Principles and Practice of Engineering examination administered on October 30, 1998.

PRELIMINARY STATEMENT

On June 23, 1999, Petitioner filed his request for formal hearing to challenge his scores on the professional engineering examination and specifically to contest the "0" scores he obtained on questions nos. 527 and 530.

The case was forwarded to the DOAH where it was assigned and was set for hearing as described above.

As required by a prehearing order, the parties filed their joint prehearing stipulation on July 19, 1999. In that stipulation they indicated that scores on questions nos. 527 and

530 were at issue. The parties also stipulated to a series of facts related to the scoring process.

At the commencement of the hearing on July 23, 1999, counsel for Respondent announced that the Respondent's expert witness agreed with Petitioner's contention as to question no. 527 and that the resulting score on question no. 527 will convert to a passing grade for the examination.

Petitioner nonetheless proceeded to testify and explain his answer and objections to question number 530. The following Petitioner's exhibits were received in evidence: Petitioner's Exhibits numbered 6, 8, 9, 10, 11, and 13.

Respondent offered and had admitted into evidence its Exhibits no. 1-12. Respondent presented no testimony in opposition to Petitioner's evidence.

The parties filed Proposed Recommended Orders on July 27 and 28, 1999. In his Proposed Recommended Order Petitioner accepts his stipulated one-point score on question no. 527 and agrees to "relinquish a decision" on question no. 530, as the additional one point for question no. 527 results in his passing the examination.

As agreed, this Recommended Order is being issued expeditiously to permit the case to be presented to the agency at its August 1999 meeting. The findings of fact herein are based on the parties' stipulations.

FINDINGS OF FACT

1. Petitioner is an applicant for licensure as a professional engineer in the State of Florida.

2. Respondent is a nonprofit corporation created by the Florida Legislature to provide administrative, investigative and prosecutorial services to the Board of Professional Engineers pursuant to Section 471.038, Florida Statutes.

3. On October 30, 1998, Petitioner sat for the Principles and Practice Engineering Examination in electrical engineering. This is a nation-wide examination developed, controlled, and administered by the National Council of Examiners for Engineering and Surveying (NCEES).

4. Petitioner received a raw score of 47 on this examination. For the electrical engineering discipline, a raw score of 47 results in a converted score of 69. A minimum

   converted score of 70 is required to pass this examination. A raw score of 48 results in a converted score of 70. Petitioner needs 1 raw score point to achieve a passing score on this examination.

5. Petitioner initially challenged the scoring of multiple choice questions nos. 527 and 530. Petitioner had received a raw score of 0 on these two questions.

6. Petitioner requested NCEES to rescore questions nos. 527 and 530, but after the rescoring NCEES determined that he was not entitled to any additional raw score points.

7. Questions nos. 527 and 530 are each worth 1 raw score point.

8. Petitioner's answer to question no. 527 represents the most practical, "real world" answer to this question, as conceded by Respondent's expert, and Petitioner is entitled to 1 raw score point for his answer.

9. Although he made an articulate, reasonable explanation for his answer to question no. 530 and for his challenge to the text of the question, Petitioner has agreed to accept the 1 additional point he needed for a passing score and abandon the challenge to question no. 530 as moot.

   CONCLUSIONS OF LAW

   
   

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

    these proceedings pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

11. By stipulation, Petitioner has met his burden of proof and is entitled to 1 additional raw score point for examination question no. 527, thus achieving a passing score for the examination.

RECOMMENDATION

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

RECOMMENDED that a final order be entered granting Petitioner credit for his response to examination question no.

527 and adjusting his examination grade to reflect a passing score.

DONE AND ENTERED this 3rd day of August, 1999, in Tallahassee, Leon County, Florida.

MARY CLARK

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 3rd day of August, 1999.

COPIES FURNISHED:

David E. Alley

4827 Springwater Circle

Melbourne, Florida 32940

William H. Hollimon, Esquire Ausley & McMullen, P.A.

227 South Calhoun Street Tallahassee, Florida 32302

Dennis Barton, Executive Director Board Professional Engineers Department of Business and

Professional Regulation 1208 Hays Street

Tallahassee, Florida 32301

Natalie A. Lowe, Esquire

Vice President for Legal Affairs

Florida Engineers Management Corporation Department of Business and

Professional Regulation 1208 Hays Street

Tallahassee, Florida 32301

William Woodyard, General Counsel Department of Business and

Professional Regulation Northwood Centre

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: 99-002815

Orders for Case No: 99-002815