97-003354 Henry A. Vidal vs. Electrical Contractors Licensing Board Status: Closed Recommended Order on Friday, March 27, 1998.

Summary: Petitioner failed to demonstrate that he is entitled to additional credit for the challenged questions of the electrical engineer examination. Denial of licensure.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HENRY A. VIDAL, )

)

Petitioner, )

)

vs. ) Case No. 97-3354

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, BOARD )

OF PROFESSIONAL ENGINEERS, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

by video teleconference on November 4, 1997, at Miami, Florida,

before Errol H. Powell, a duly designated Administrative Law

Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Henry A. Vidal, pro se

5832 Alton Road

Miami Beach, Florida 33140

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

The issue for determination is whether Petitioner is

eligible for licensure by the Board of Professional Engineers.

PRELIMINARY STATEMENT

In October 1996, Henry A. Vidal (Petitioner) took the

Principles and Practice part of the Electrical Engineer

Examination (Examination). The minimum score required to pass

the Examination was 70. The Department of Business and

Professional Regulation, Board of Professional Engineers

(Respondent) notified Petitioner that he did not successfully

complete the Examination, having received a score of 67. By

letter dated March 25, 1997, Petitioner requested a formal

hearing. On July 17, 1997, this matter was referred to the

Division of Administrative Hearings.

At hearing, Petitioner testified in his own behalf,

presented the testimony of one witness (an expert) and entered

two exhibits into evidence. Respondent presented the testimony

of one witness (an expert) and entered five exhibits into

evidence.

A transcript of the hearing was ordered. At the request of

the parties, the time for filing post-hearing submissions was set

for more than ten days following the filing of the transcript.

The parties filed post-hearing submissions which have been duly

considered.

FINDINGS OF FACT

1. In October 1996, Henry A. Vidal (Petitioner) took the

Principles and Practice part of the Electrical Engineer

Examination (Examination).

2. A minimum score of 70 is required to pass the

Examination. The Department of Business and Professional

Regulation, Board of Professional Engineers (Respondent) notified

Petitioner that he had not successfully completed the

Examination, having received a score of 67.

3. The Examination is a national examination and is graded

by national examiners.

4. Petitioner challenges questions numbered 131 and 133 on

the Examination. A scoring plan is used for grading each

question.

5. For question numbered 131, the highest score achievable

is 10. According to the scoring plan, correctly solving any one

part of the problem in the challenged question earns a score of

2; correctly solving any two parts, earns a score of 4; correctly

solving any three parts, earns a score of 6; correctly solving

any four parts, earns a score of 8; and correctly determining

five specific items, even though the solution need not be

perfect, earns a score of 10.

6. Petitioner received a score of 4 on question numbered

131.

7. Regarding question numbered 131, under the scoring plan,

Petitioner is not entitled to any additional points. Even though

Petitioner may have indicated his knowledge of the problem in the

challenged question, he failed to solve the problem correctly,

e.g., omitting a component and miscalculating. Petitioner solved

two parts correctly, earning a score of 4.

8. For question numbered 133, the highest score achievable

is 10. According to the scoring plan, there are ten parts to the

problem in the challenged question and correctly solving one or

two parts, earns a score of 2; correctly solving three or four

parts, earns a score of 4; correctly solving five or six parts,

earns a score of 6; correctly solving seven or eight parts, earns

a score of 8; and correctly solving nine or ten parts, earns a

score of 10.

9. Petitioner received a score of 8 on question numbered

133.

10. Regarding question numbered 133, under the scoring

plan, Petitioner is not entitled to any additional points. Even

though Petitioner may have indicated his knowledge of the problem

in the challenged question, he failed to solve the problem

correctly, e.g., using the incorrect quantity. Petitioner solved

eight parts correctly, earning a score of 8.

11. The examiners for the Examination re-graded

Petitioner's answers to questions numbered 131 and 133.

Petitioner was denied additional credit for the challenged

questions by the examiners.

12. Petitioner's answers were not arbitrarily or

capriciously graded.

13. The grading process was not devoid of logic and reason.

The scoring plan was properly used.

14. Questions numbered 131 and 133 are not beyond the scope

of knowledge that is required of a candidate for licensure as an

electrical engineer and are capable of being answered by such a

candidate for licensure.

15. Considering the proof, the opinions of Respondent's

expert were more persuasive. The evidence presented was

insufficient to warrant additional credit to Petitioner on

questions numbered 131 and 133.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto pursuant to Section 120.569 and Subsection

120.57(1), Florida Statutes.

17. The burden of proof is upon the Petitioner to show by a

preponderance of evidence that the Examination was faulty, that

questions on the Examination were worded arbitrarily or

capriciously, that his answers to the questions were arbitrarily

or capriciously graded, or that the grading process was devoid of

logic and reason. Harac v. Department of Professional

Regulation, Board of Architecture , 484 So. 2d 1333, 1338 (Fla. 3d

DCA 1986); State ex rel. Glaser v. Pepper , 155 So. 2d 383 (Fla.

1st DCA 1963); State ex rel. Topp v. Board of Electrical

Examiners for Jacksonville Beach , 101 So. 2d 583 (Fla. 1st DCA

1958).

18. Petitioner challenges the grading of his answers to the

challenged questions. Petitioner has failed to demonstrate that

his answers were arbitrarily or capriciously graded or that the

grading process was devoid of logic and reason, and, therefore,

Petitioner has failed to satisfy his burden of proof.

19. Rule 61-11.012, Florida Administrative Code, provides

in pertinent part:

(1) . . . If the examination being

challenged is an examination developed by or

for a national board, council, association,

or society (hereinafter referred to as

national organization), the Department shall

accept the development and grading of such

examination without modification.

20. Petitioner is not entitled to additional credit for the

challenged questions.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Business and Professional

Regulation, Board of Professional Engineers enter a final order

dismissing the examination challenge of Henry A. Vidal and

denying him licensure.

DONE AND ENTERED this 27th day of March, 1998, in

Tallahassee, Leon County, Florida.

___________________________________

ERROL H. POWELL

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 27th day of March, 1998.

COPIES FURNISHED:

Henry A. Vidal, pro se

5832 Alton Road

Miami Beach, Florida 33140

R. Beth Atchison

Assistant General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Lynda L. Goodgame, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Angel Gonzalez, Executive Director

Department of Business and

Professional Regulation

Board of Professional Engineers

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.