97-000068 Roger E. Yates vs. Board Of Professional Land Surveyors Status: Closed Recommended Order on Wednesday, February 19, 1997.

Summary: Department gave Petitioner requested points but Petitioner still failed examination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROGER E. YATES, )

)

Petitioner, )

)

vs. ) CASE No. 97-0068

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, BOARD )

OF PROFESSIONAL LAND SURVEYORS, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER OF DISMISSAL

On February 11, 1997, Respondent filed a Motion to Dismiss.

The motion was heard by Administrative Law Judge, Susan B.

Kirkland, on February 17, 1997, by telephonic conference.

APPEARANCES

For Petitioner: Gerald T. Roden, Esquire

1432 Twenty First Street

Vero Beach, Florida 32960

For Respondent: R. Beth Atchison, Assistant General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0750

STATEMENT OF THE ISSUES

Whether Petitioner should be given credit for an examination

question on the Florida Jurisdictional Essay Exam for Surveyors

and Mappers taken by Petitioner in April, 1996.

PRELIMINARY STATEMENT

By letter dated October 1, 1996, Petitioner, Roger E. Yates,

filed a petition pursuant to Rule 61-11.012, Florida

Administrative Code, challenging the points awarded for question

number 16 on the Florida Jurisdictional Exam for Surveyors and

Mappers given in April, 1996. Petitioner contended that he

should have been given four points, the maximum number of points

which could have been given for the answer to question number 16.

The request was forwarded to the Division of Administrative

Hearings for assignment to an Administrative Law Judge. The

final hearing was scheduled for February 20, 1997. On February

11, 1997, Respondent, Department of Business and Professional

Regulation, Board of Professional Engineers (Department) filed a

Motion to Dismiss, stating that the Petitioner had been given the

maximum number of points that could be given for the answer to

question number 16. On February 14, 1997, Petitioner filed a

Response to Motion to Dismiss and Motion for Leave to File

Amended Petition. Petitioner sought to amend his challenge to

include other questions in addition to number 16.

The motions were heard by telephone conference on February

17, 1997. Petitioner’s Motion for Leave to File Amended Petition

for Formal Hearing is DENIED. Petitioner seeks to include

questions which he did not challenge in his original petition.

As such, the challenges to questions other than question number

16 would be untimely filed because they were not challenged

within twenty-one days of the date that he was notified of his

examination grade report in accordance with Rule 61-11.012,

Florida Administrative Code.

FINDINGS OF FACTS

1. Petitioner, Roger E. Yates, filed a petition for formal

hearing by letter dated October 1, 1996, challenging the points

which were awarded to him for the answer to question number 16 on

the Florida Jurisdictional Essay Exam for Surveyors and Mappers

given in April 1996.

2. Petitioner contends that he should have been given the

maximum number of points, which is four, for the answer to

question number 16. Petitioner did not challenge any other

questions in his petition.

3. Petitioner was awarded four points for the answer to

question number 16, which was the maximum number of points he

could receive. Such award results in a score of 69, which is

less than the required minimum score of 70.

CONCLUSIONS OF LAW

4. The Division of Administrative Hearings has jurisdiction

over the parties to and the subject matter of this proceeding.

Section 120.57(1), Florida Statutes.

5. The Department is giving Petitioner four points for the

answer to question number 16, which is the relief that Petitioner

sought in his petition dated October 1, 1996. Thus, the

Department concedes that Petitioner is entitled to four points

for that examination question and there is no disputed issue of

material fact.

6. The four points will not change Petitioner’s overall

score for the examination of 69. Rule 61G-17.4004, Florida

Administrative Code, provides that a score of 70 is required to

pass the Florida Jurisdictional Exam.

7. Petitioner has sought to amend his petition to challenge

other questions on the examination. To allow Petitioner to amend

his petition to include questions which were not challenged in

the original petition, in essence, would be to allow Petitioner

to make an untimely challenge to those questions because the

questions were not challenged within twenty-one days of the

notice of the examination results as required by Rule 61-11.012,

Florida Administrative Code.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a Final Order be entered dismissing Roger

E. Yates’ petition for relief.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this

19th day of February, 1997.

___________________________________

SUSAN B. KIRKLAND

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of February, 1997.

COPIES FURNISHED:

R. Beth Atchison, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Gerald T. Roden, Esquire st

1432 21 Street

Vero Beach, Florida 32960

Angel Gonzalez, Executive Director

Department of Business and

Professional Regulation

1940 North Monroe Street, Northwood Centre

Tallahassee, Florida 32399-0756

Lynda L. Goodgame, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street, Northwood Centre

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.