99-002529 Donald Ambroise vs. Florida Engineers Management Corporation Status: Closed Recommended Order on Monday, October 4, 1999.

Summary: It was recommended that the Board of Professional Engineers reject Petitioner`s challenge to the failing grade he received on the national licensure examination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONALD AMBROISE, )

)

Petitioner, )

)

vs. ) Case No. 99-2529

)

FLORIDA ENGINEERS MANAGEMENT )

CORPORATION, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

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

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

25, 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: Donald Ambroise, pro se

6825 Southwest 15th Street

Pembroke Pines, Florida 33023

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 Problems 124 and 222 of 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 June 2, 1999, Petitioner requested a "formal

administrative hearing" on his 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. On June 8, 1999, the matter was referred to the

Division of Administrative Hearings (Division) for the assignment

of an Administrative Law Judge to conduct the hearing Petitioner

had requested.

As noted above, the hearing was held on August 25, 1999. 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 (Petitioner's

Exhibit 1 and Respondent's Exhibits 1 through 16) were offered

and received into evidence.

At the conclusion of the evidentiary portion of the hearing,

the undersigned announced, on the record, that proposed

recommended orders had to be filed no later than 14 days after

the close of the hearing. Petitioner and Respondent filed their

Proposed Recommended Orders on September 3, 1999, and

September 7, 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 47 on the

Examination. For the civil engineering specialization, a raw

score of 47 converts to a score of 69. To pass the Examination,

a converted score of 70 is needed.

3. Petitioner formally requested the NCEES to rescore his

solutions to Problems 124, 125, and 222 on the Examination. At

the time he made this request, Petitioner was aware that

rescoring could result in the candidate's score being lowered

(although he believed that, in his case, the outcome would be a

higher, not a lower, score).

4. Petitioner was wrong. The rescoring he requested

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).

5. After being notified of the outcome of the rescoring,

Petitioner requested the Florida Board of Professional Engineers

to grant him a "formal administrative hearing" on the matter.

6. Petitioner's request was granted.

7. At hearing, Petitioner advised that he was challenging

only the grading of his solutions to Problems 124 and 222 of the

Examination, and that he was not pursuing his challenge to the

score he had received for his solution to Problem 125.

8. Problems 124 and 222 were worth ten (raw) points each.

9. Problem 124 contained four subparts (or requirements).

10. Petitioner received two (raw) points for his solution

to Problem 124. Rescoring did not result in any change to this

score.

11. Due to mathematical errors that he made, Petitioner did

not solve any of the subparts of Problem 124 correctly.

Accordingly, 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 two, which is the score he received.

12. Problem 222 contained five subparts (or requirements).

13. Petitioner originally received a (raw) score of six for

his solution to Problem 222. Upon rescoring, his (raw) score was

reduced to two.

14. In attempting to solve Problem 222, Petitioner

overestimated the lateral earth pressure due to his

misunderstanding of the term "equivalent fluid pressure" used in

the problem. In addition, in his solution to subpart (a), he did

not properly specify the appropriate bar size and spacing.

15. Giving Petitioner a (raw) score of two for his solution

to Problem 222 was consistent with the requirements and

guidelines of the NCEES scoring plan for this problem.

CONCLUSIONS OF LAW

16. 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.

17. 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). 1/ 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. . . .

18. 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. 2/

(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).

19. 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."

20. 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."

21. 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.

22. 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 of Administrative

Hearings for hearing.

23. 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.").

24. Petitioner failed to submit such proof in the instant

case.

25. In attempting to demonstrate that he should have

received higher scores for his solutions to Problems 124 and 222

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). Respondent countered Petitioner's testimony with the

expert testimony of an experienced and 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 124 and 222) 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.

26. Moreover, even if Petitioner had persuaded the

undersigned that he (Petitioner) should have received higher

scores for these solutions, 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.").

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

scores he received from the NCEES for his solutions to Problems

124 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 4th day of October, 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 4th day of October, 1999.

ENDNOTES

1/ 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.

2/ 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 :

Donald Ambroise

6825 Southwest 15th Street

Pembroke Pines, Florida 33023

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 Burton, 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.