99-002054 Mian M. Subhani vs. Department Of Business And Professional Regulation, Florida Engineers Management Corporation Status: Closed Recommended Order on Monday, December 20, 1999.

Summary: Board is required to accept the National Council of Examiners for Engineers and Surveyors` scoring on Petitioner`s solutions on an engineering licensure examination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAN M. SUBHANI, )

)

Petitioner, )

)

vs. ) Case No. 99-2054

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

FLORIDA BOARD OF PROFESSIONAL )

ENGINEERS, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

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

accordance with Section 120.57(1), Florida Statutes, on

November 1, 1999, by video teleconference at sites in Fort

Lauderdale and Tallahassee, Florida, before Stuart M. Lerner, a

duly-designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Mian M. Subhani, pro se

5340 West Saxon Circle

Fort Lauderdale, Florida 33331

For Respondent: William H. Hollimon, Esquire

Ausley & McMullen

Post Office Box 391

Tallahassee, Florida 32302

STATEMENT OF THE ISSUE

Whether Petitioner is entitled to additional credit for his

solutions to four problems on the Principles and Practice of

Engineering portion of the engineering licensure examination

administered on October 30, 1998, by the National Council of

Examiners for Engineers and Surveyors.

PRELIMINARY STATEMENT

By letter dated March 26, 1999, Petitioner made the

following request directed to Natalie Lowe of the Florida Board

of Professional Engineers (Board):

I, Mian Mahboob Subhani, request an

examination challenge [to the failing score

he received on the October 30, 1998,

Principles and Practice of Engineering

portion of the engineering licensure

examination administered by the National

Council of Examiners for Engineers and

Surveyors]. I am enclosing three pages of

Request for Review of Examination Challenge

Item" . . . [f]or questions: No. 120, 125,

and 222. I am requesting a review of

question #120, which is discussed on page 1.

Question #125 is discussed on page 2 and

question #222 is discussed on page 3. I

already have submitted two pages of scratch

paper . . . which I submitted at my review

process on March 19, 1999. Will you please

review question numbers 120, 125, and 222.

There looks to be an error on these three

questions.

On May 5, 1999, Ms. Lowe, on behalf of the Board, referred the

matter to the Division of Administrative Hearings (Division) for

the "assign[ ment of] an Administrative Law Judge to conduct a

hearing pursuant to Section 120.57(1), Florida Statutes."

As noted above, the hearing was held on November 1, 1999.

1/ At the hearing, Petitioner testified on his own behalf, and

Clayton Campbell, P.E., testified (as an expert) on behalf of

Respondent. No other witnesses testified. In addition to the

testimony of Petitioner and Mr. Campbell, a total of 17 exhibits

(Respondent's Exhibits 1 through 17) were offered and received

into evidence.

At the conclusion of the evidentiary portion of the hearing,

the undersigned announced, on the record, that post-hearing

submittals had to be filed within ten days of the date of the

filing of the transcript of the hearing. The hearing Transcript

(consisting of one volume) was filed on November 30, 1999.

Petitioner and Respondent timely filed their post-hearing

submittals on November 12, 1999, and December 10, 1999,

respectively. These post-hearing submittals have been carefully

considered by the undersigned.

FINDINGS OF FACT

Based upon the evidence adduced at hearing and the record as

a whole, the following findings of fact are made:

1. On October 30, 1998, as part of his effort to obtain a

Florida engineering license, Petitioner sat for the Principles

and Practice of Engineering Examination (Examination). This is a

national examination developed and administered by the National

Council of Examiners for Engineers and Surveyors ( NCEES).

Petitioner chose to be tested in civil engineering.

2. Petitioner received a raw score of 45 on the

Examination. For the civil engineering specialization, a raw

score of 45 converts to a score of 67. To pass the Examination,

a converted score of 70 is needed.

3. Petitioner formally requested (in writing, by letter

dated March 26, 1999) that his solutions to Problems 120, 125,

and 222 on the Examination be rescored. Petitioner's written

request was made to Natalie Lowe of the Board, who forwarded it

to the NCEES.

4. Appended to Petitioner's letter to Ms. Lowe were two

pages of "scratch paper" on which Petitioner had written during

his post-examination review on March 19, 1999. On the first page

were written comments he had made regarding the scoring of

Problems 120 and 125. On the second page were the following

written comments he had made regarding the scoring of Problems

220 and 222:

220 a, b, & c

2 parts b & c correct.

Min. mark I should get[:]

At least 5 instead of 2 and maybe 7.

There is an error.

222 ok

5. The NCEES's rescoring of Petitioner's solutions to

Problems 120, 125, and 222 resulted in his receiving a raw score

of 43 (or a converted score of 65, 5 points less than he needed

to pass the Examination).

6. The Board received the NCEES's rescoring results on

May 12, 1999.

7. The Board subsequently referred the matter to the

Division to conduct an administrative hearing.

8. At the administrative hearing that was held pursuant to

the Board's referral, Petitioner challenged the grading of his

solutions to Problems 120, 125, and 220 of the Examination, and

indicated that he had "no dispute concerning the grading of [his

solution to Problem] 222," notwithstanding that he had requested,

in his March 26, 1999, letter to Ms. Lowe, that his solution to

Problem 222 be rescored. Petitioner explained that he had made

this request as a result of inadvertence and that he had actually

intended to seek rescoring of his solution to Problem 22 0 , not

Problem 22 2 .

9. Problems 120, 125, and 222 were worth ten raw points

each.

10. Problem 120 contained four subparts (or requirements).

11. Petitioner initially received four raw points for his

solution to Problem 120. Rescoring did not result in any change

to this score.

12. Petitioner solved two subparts of Problem 120 correctly

(subparts (a) and (b)). The solutions to the other two subparts

of Problem 120 (subparts (c) and (d)), however, were incorrect

inasmuch as Petitioner had neglected, in making the lateral force

calculations and drawing the diagrams required by these subparts,

to include the force attributable to the movement of the

groundwater referred to in the problem. Therefore, in accordance

with the requirements and guidelines of the NCEES scoring plan

for this problem, the highest raw score that he could have

received for his solution to this problem was a four, which is

the score he received.

13. Problem 125 contained three subparts (or requirements).

14. Petitioner initially received a raw score of two for

his solution to Problem 125. Upon rescoring, no change was made

this raw score.

15. Petitioner correctly solved only one of the three

subparts of Problem 125 (subpart (c)). In his solution to

subpart (a) of Problem 125, Petitioner did not provide, as

required by this subpart, the quantities of water, cement, and

aggregate necessary for the project described in the problem.

Petitioner's solution to subpart (b) did not describe one of the

acceptable slump increasing methods that the candidates were

required describe in their solution to this subpart.

Accordingly, giving Petitioner a raw score of two for his

solution to Problem 125 was consistent with the requirements and

guidelines of the NCEES scoring plan for this problem.

16. Petitioner received a raw score of two for his solution

to Problem 220. He did not request, in his March 26, 1999,

letter to Ms. Lowe, a rescoring of his solution to this problem,

and, as a result, his solution was not rescored. At the

administrative hearing, Petitioner testified on his own behalf

regarding the scoring of this solution and, during his testimony,

contended that the score he received was too low; however,

neither a copy of the problem, nor a copy of the NCEES scoring

plan for this problem, was offered into evidence. Accordingly,

the record is insufficient to support a finding that the score

Petitioner received for his solution to Problem 220 was

undeservedly low in light of the NCEES scoring plan for this

problem.

17. Petitioner initially received a raw score of eight for

his solution to Problem 220. Rescoring resulted in this score

being reduced two points to a six. Petitioner did not present

any evidence supporting the position (which he advances in his

Proposed Recommended Order) that he should have received a higher

score for his solution to this problem, and, consequently,

Respondent's expert, in his testimony at hearing, did not address

the matter. While there were exhibits offered (by Respondent)

and received into evidence relating to the scoring of

Petitioner's solution to Problem 222, it is not apparent from a

review of these exhibits that such scoring deviated from the

requirements of the NCEES scoring plan for this problem (which

was received into evidence as part of Respondent's Exhibit 12).

CONCLUSIONS OF LAW

18. A person seeking to become licensed by the Department

of Business and Professional Regulation (Department) to practice

engineering in the State of Florida must take and pass a

licensure examination (provided that person is not entitled to

licensure by endorsement). Sections 471.013 and 471.015, Florida

Statutes.

19. The required examination is described in the Board of

Professional Engineer's (Board's) Rules 61G15-21.001 and 61G15-

21.002, Florida Administrative Code, which provide, in pertinent

part, as follows:

61G15-21.001 Written Examination Designated;

General Requirements.

(1) The Florida Board of [Professional]

Engineers hereby determines that a written

examination shall be given and passed prior

to any applicant receiving a license to

practice as a professional engineer . . . .

The examination shall be provided by the

National Council of Examiners for Engineers

and Surveyors ( NCEES). 2/ The examination

consists of two parts, each of eight hours.

Candidates are permitted to bring certain

reference materials, slide rules and certain

calculators. A list of approved reference

materials and calculators will be provided to

all candidates prior to each examination.

All materials including pens and pencils are

to be furnished by the applicant. National

examination security requirements as set

forth by the NCEES shall be followed

throughout the administration of the

examination. . . .

61G15-21.002 Areas of Competency and Grading

Criteria.

(1) The Engineering Fundamentals Examination

shall include all questions and problems on

subjects normally connected with the basic

fundamentals of engineering education. The

topics which will usually be treated in this

section are as follows: mathematics,

mathematical modeling of engineering systems,

nucleonics and wave phenomena, chemistry,

statistics, dynamics, mechanics of materials,

fluid mechanics, thermodynamics/heat

transfer, computer programming, electrical

circuits, statics, structure of matter,

engineering mechanics, electronics and

electrical machinery.

(2) Part two of the examination shall be

based on Professional Practice and Principles

and shall be devoted primarily to the field

of the applicant's finding solutions to

problems designed to test the applicant's

ability to apply acceptable engineering

practice to problems which are representative

of his discipline. Applicants for

registration must select one of the listed

specializations in which to be examined. The

Board may also authorize examinations in

other engineering disciplines when the Board

determines that such disciplines warrant the

giving of a separate examination in terms of

cost effectiveness and acceptability in the

profession of engineering.

(3) In Part Two of the examination the

applicant will usually be required to solve

from seven to ten problems which the

applicant may choose from approximately

twenty problems drawn from a test pattern

generally set forth as follows: . . .

(b) Civil/Sanitary -- Highway, Structural,

Sanitary Planning, Fluids, Soils, Economics,

Water Control and Resources, Treatment

Facility Design, Fluid Flow Hydraulics,

Planning Analysis, System Design, Chemical-

Bio Problems, Materials Sections, and

Economics. . . .

20. The Board's Rules 61G15-21.003 and 61G15-21.004,

Florida Administrative Code, address the grading of the licensure

examination. These rules provide, in pertinent part, as follows:

61G15-21.003 Grading Criteria for the Essay

Portion of Examination.

(1) Insofar as the essay portion of the

examination is not machine graded the Board

deems it necessary to set forth the following

guidelines upon which grades for the essay

portion shall be based. Grades on the essay

portion of the examination will be based upon

the application of good engineering judgment,

the selection and evaluation of pertinent

information and the demonstration of the

ability to make reasonable assumptions when

necessary. Answers may vary due to

assumptions made. Partial credit will

normally be given if correct fundamental

engineering principles are used, even though

the answer may be incorrect. All grading

will be done by an expert committee provided

by the national testing service supplying the

examination. 3/

(2) An applicant must follow all pertinent

instructions on the examination booklet and

the solution pamphlet. The applicant shall

indicate which problems he has solved and is

submitting for credit in the designated boxes

on the front cover of the solution pamphlet.

If an applicant fails to indicate which

problems he is submitting for credit in the

designated boxes, only the first four

problems worked in said pamphlet shall be

graded.

61G15-21.004 Passing Grade. . . .

(2) A passing grade on Part Two of the

examination is defined as a grade of 70 or

better. The grades are determined by a group

of knowledgeable professional engineers, who

are familiar with engineering practice and

with what is required for an applicable

engineering practice and with what is

required for an applicable engineering task.

These professional engineers will establish a

minimum passing score on each individual test

item (i.e., examination problem). An Item

Specific Scoring Plan ( ISSP) will be prepared

for each examination item based upon the

NCEES standard scoring plan outline form. An

ISSP will be developed by persons who are

familiar with each discipline including the

item author, the item scorer, and other NCEES

experts. On a scale of 0-10, six (6) will be

a minimum passing standard and scores between

six (6) and ten (10) will be considered to be

passing scores for each examination item. A

score of five (5) or lower will be considered

an unsatisfactory score for that item and the

examinee will be considered to have failed

that item. To pass, an examinee must average

six (6) or greater on his/her choice of eight

(8) exam items, that is, the raw score must

be forty-eight (48) or greater based on a

scale of eighty (80). This raw score is then

converted to a base 100 on which, as is noted

above, a passing grade will be seventy (70).

21. The Board's Rule 61G15-21.006, Florida Administrative

Code, provides that "[e] xam review procedures are governed by

rule 61-11.017, F.A.C." and that "[a] ll reviews of answers,

questions, papers, grades, and grading key shall be at a mutually

convenient time and subject to national testing security

requirements in order to insure the integrity of the

examination."

22. Rule 61.017, Florida Administrative Code, is a

Department rule which provides, in pertinent part, that "[r] eview

of examinations developed by or for a national council,

association, society (herein after referred as national

organization) shall be conducted in accordance with national

examination security guidelines."

23. In the instant case, after receiving a failing score on

the Principles and Practice of Engineering portion of the NCEES-

administered and graded engineering licensure examination and

receiving an even lower score upon subsequent review and

rescoring, Petitioner requested a "formal administrative hearing"

to contest his failing score.

24. The Board (acting through the Florida Engineers

Management Corporation, a Florida not-for-profit corporation

created pursuant to Section 471.038, Florida Statutes, "to

provide administrative, investigative, and prosecutorial

services" to the Board) granted Petitioner's request for a

hearing and referred the matter to the Division for hearing.

25. In those instances where a State of Florida licensing

board or agency is empowered to alter a candidate's failing

examination score, the candidate is entitled to a hearing,

pursuant to Chapter 120, Florida Statutes, to contest his or her

failing score. At the hearing, the candidate bears the burden of

establishing, by a preponderance of the evidence, that his or her

failing score was the product of arbitrary or otherwise improper

or erroneous grading. See Harac v. Department of Professional

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

(Fla. 3d DCA 1986)("Ordinarily one who fails a licensure

examination would shoulder a heavy burden in proving that a

subjective evaluation by an expert is arbitrary."); Florida

Department of Health and Rehabilitative Services v. Career

Service Commission , 289 So. 2d 412, 414 (Fla. 4th

DCA 1974)(1974)("[T]he burden of proof is on the party asserting

the affirmative on an issue before an administrative

tribunal. . . . 'As a general rule the comparative degree of

proof by which a case must be established is the same before an

administrative tribunal as in a judicial proceeding--that is, [a]

preponderance of the evidence. It is not satisfied by proof

creating an equipoise, but it does not require proof beyond a

reasonable doubt.'"); Section 120.57(1)(j), Florida Statutes

("Findings of fact shall be based upon a preponderance of the

evidence, except in penal or licensure disciplinary proceedings

or except as otherwise provided by statute, and shall be based

exclusively on the evidence of record and on matters officially

recognized.").

26. Petitioner failed to submit such proof in the instant

case.

27. In attempting to demonstrate that he should have

received higher scores for his solutions to Problems 120, 125,

and 220 of the Examination, Petitioner did not present the

testimony of any independent expert witness. Instead, he relied

exclusively on his own testimony, which he was free to do

notwithstanding his interest in the outcome of the case. See

Martuccio v. Department of Professional Regulation , 622 So. 2d

607, 609-10 (Fla. 1st DCA 1993).

28. Respondent countered Petitioner's testimony regarding

Problems 120 and 125 with the expert testimony of a knowledgeable

Florida-licensed engineer, Clayton Campbell, P.E. Given Mr.

Campbell's impressive credentials and qualifications, and his

apparent candor and lack of bias, the undersigned has credited

his (Mr. Campbell's) expert testimony (concerning the scoring of

Petitioner's solutions to Problems 120 and 125) over Petitioner's

testimony to the contrary, and he has determined that the scores

Petitioner received for his solutions to these problems were not,

given the requirements and guidelines of the NCEES scoring plan

for these problems, undeservingly low.

29. The record evidence in this case is also insufficient

to support Petitioner's position (articulated during his

testimony) that he should have received a higher score for his

solution to Problem 220 inasmuch as neither a copy of the problem

itself or the NCEES scoring plan for the problem is a part of the

evidentiary record.

30. Petitioner's contention (advanced for the first time in

his post-hearing submittal) that the rescoring of his solution to

Problem 222 resulted in a lower score than he deserved likewise

lacks sufficient evidentiary support.

31. Moreover, even if Petitioner had persuaded the

undersigned that he (Petitioner) should have received higher

scores from the NCEES for his solutions to Problems 120, 125,

220, and 222, the undersigned would still not recommend that the

Board grant Petitioner the relief he is seeking in this case.

This is because the Examination is "an examination developed by

or for a national board, council, association, or society,"

within the meaning of the Department's Rule 61-11.012(1), Florida

Administrative Code, and, pursuant to that rule provision, the

Board must "accept the development and grading of such [an]

examination without modification." See also Department Rule 61-

11.010(1)(a), Florida Administrative Code ("National Examinations

shall be graded solely and exclusively by the National

examination provider or its designee. National examinations

shall include those developed by or for national boards,

councils, associations or societies."); Board Rule 61G15-

21.003(1), Florida Administrative Code ("All grading will be done

by an expert committee provided by the national testing service

supplying the examination.").

32. In view of the foregoing, Petitioner's challenge to the

scores he received from the NCEES for his solutions to Problems

120, 125, 220, and 222 of the Principles and Practice of

Engineering portion of the October 30, 1998, engineering

licensure examination should be rejected.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered rejecting

Petitioner's challenge to the failing score he received from the

NCEES on the Principles and Practice of Engineering portion of

the October 30, 1998, engineering licensure examination.

DONE AND ENTERED this 20th day of December, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of December, 1999.

ENDNOTES

1/ The hearing was originally scheduled to commence on August 6,

1999, but was continued at the request of Respondent.

2/ A licensing board within the Department of Business and

Professional Regulation, such as the Board of Professional

Engineers, is authorized by Section 455.217(1)(d), Florida

Statutes, to "approve by rule the use of any national examination

which the department has certified as meeting requirements of

national examinations and generally accepted testing standards

pursuant to department rules." A "national examination," as that

term is used in Section 455.217, Florida Statutes, is defined in

Rule 61-11.015, Florida Administrative Code, as follows:

(1) . . . To ensure compliance, the

following definition of a national

examination shall be applied when using a

national examination.

(2) A national examination is an examination

developed by or for a national professional

association, board, council or society

(hereinafter referred to as organization) and

administered for the purpose of assessing

entry level skills necessary to protect the

health, safety and welfare of the public from

incompetent practice.

(a) The purpose of the examination shall be

to establish entry level standards of

practice that shall be common to all

practitioners.

(b) The practice of the profession at the

national level must be defined through an

occupational survey with a representative

sample of all practitioners and professional

practices.

(c) The examination for licensure must

assess the scope of practice and the entry

skills defined by the national occupational

survey.

(3) The national organization must be

generally recognized by practitioners across

the nation in the form of representatives

from the State Boards or shall have

membership representing a substantial number

of the nation's practitioners who have been

licensed through the national organization

examination.

(4) The national organization shall be the

responsible body for overseeing the

development and scoring of the national

examination.

(5) The national organization shall provide

security guidelines for the development and

grading of the national examination and shall

oversee the enforcement of these guidelines.

3/ Pursuant to the Department's Rule 61-11.010(1)(a), Florida

Administrative Code, "National Examinations shall be graded

solely and exclusively by the National examination provider or

its designee."

COPIES FURNISHED:

Mian M. Subhani

5340 West Saxon Circle

Fort Lauderdale, Florida 33331

William H. Hollimon, Esquire

Ausley & McMullen

Post Office Box 391

Tallahassee, Florida 32302

Natalie Lowe, Esquire

Florida Board of Professional Engineers

1208 Hays Street

Tallahassee, Florida 32301

Dennis Barton, Executive Director

Florida Board of Professional Engineers

1208 Hays Street

Tallahassee, Florida 32301

Barbara D. Auger, 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.