00-001942 Rasik V. Chokshi vs. Florida Engineers Management Corporation Status: Closed Recommended Order on Friday, October 13, 2000.

Summary: Applicant failed to prove the score he received on national licensing exam for engineers was undeservingly low, and, even if he had, he would not be entitled to relief because, pursuant to DBPR rule, national examination results are to be accepted without

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RASIK V. CHOKSHI, )

)

Petitioner, )

)

vs. ) Case No. 00-1942

)

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 August

30, 2000, by video teleconference at sites in West Palm Beach and

Tallahassee, Florida, before Stuart M. Lerner, a duly-designated

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Rasik V. Chokshi, pro se

2415 24th Lane

Palm Beach Gardens, Florida 33418

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 three problems on the Principles and Practice of

Engineering portion of the engineering licensure examination

administered on October 29, 1999, by the National Council of

Examiners for Engineers and Surveyors.

PRELIMINARY STATEMENT

By letter dated May 3, 2000, to the Florida Board of

Professional Engineers (Board), Petitioner requested a "formal

hearing" to contest the failing score (69) that he received on

the October 29, 1999, Principles and Practice of Engineering

portion of the engineering licensure examination administered by

the National Council of Examiners for Engineers and Surveyors.

In his letter, Respondent stated that he was specifically

challenging the scores he received on Problems 141 (claiming he

should have received "at least 6 points instead of 4 points" for

his solution to this problem), 144 (claiming he should have

received "4 points instead of 2 points" for his solution to this

problem), and 147 (claiming he should have received "4 points

instead of 2 points" for his solution to this problem).

On June 6, 2000, 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 August 30, 2000. At

the hearing, Petitioner testified on his own behalf, and he also

presented the (expert) testimony of Jitendra Parikh, P.E. In

addition, he offered into evidence two exhibits (Respondent's

Exhibits 1 and 2), both of which were admitted. Respondent

presented no testimonial evidence; however, it did offer into

evidence 16 exhibits, all of which were admitted.

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 September 29, 2000.

Petitioner and Respondent timely filed their post-hearing

submittals on September 18, 2000, and October 9, 2000,

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 29, 1999, 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 mechanical engineering.

2. Petitioner received a raw score of 47 on the

Examination. For the mechanical 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 (in writing, by letter

dated March 13, 2000) that his solutions to Problems 141, 144,

and 147 on the Examination be rescored. Petitioner's written

request was made to the Board's "Legal Section," which forwarded

it to the NCEES.

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

Problems 141, 144, and 147 resulted in his receiving no

additional points.

5. The Board received the NCEES's rescoring results on or

about April 25, 1999.

6. After receiving a letter from Petitioner (dated May 3,

2000) requesting a "formal hearing," the Board referred the

matter to the Division.

7. Problems 141, 144, and 147 were worth ten raw points

each.

8. Petitioner received four raw points for his solution to

Problem 141.

9. In his solution to Problem 141, Petitioner failed to

take into consideration bending stresses and loads. 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.

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

to Problem 144.

11. In rescoring Petitioner's solution to this problem, the

NCEES rescorer made the following "comments":

A correct solution [to this problem] must

include

1. an energy balance on the open feedwater

heater to determine the fraction of flow

through turbine T 1 that is extracted and

taken to the open feedwater heater.

2. a correct equation for determining the

specific work developed by the two turbines

on the basis of one pound entering turbine

T 1 . The equation the examinee has written

assumes the same flow through both turbines.

3. determination of the mass rate of flow

(m 1 ) at the inlet to turbine T 1 . This is

determined by dividing the net power by the

specific net work.

4. determining the rate at which heat is

added in the steam generator and reheater.

5. finally, dividing the rate at which heat

is added in the steam generator by the

heating value times 0.75 with the appropriate

conversion factors.

The examinee has used the new power (200 MW 5

or 200 x 10 )as the rate at which heat is

added in the steam generator and reheater.

This is incorrect.

The scoring plan states

2 RUDIMENTARY KNOWLEDGE

. . . OR-(3) determines tons/day =

W net /7650, W net = (h 1 - h 2 ) (h 3 - h 4 )

This is what the examinee has done.

Based on the scoring plan and the above

analysis, a score of 2 is recommended.

There has been no showing that the foregoing "analysis" was in

any way flawed or that application of the requirements and

guidelines of the NCEES scoring plan for this problem should have

resulted in Petitioner receiving a raw score higher than two for

his solution to Problem 144.

12. Petitioner received a raw score of four for his

solution to Problem 147.

13. In rescoring Petitioner's solution to this problem, the

NCEES rescorer made the following "comments":

The examinee used an incorrect temperature

difference in [his] calculation of the heat

transferred by convection and radiation from

the outer surface of the pipe.

Most of the examinee's work for requirement

(b) was not needed. In doing that

unnecessary work, however, [he] made two

significant errors: 1. [He] evaluated a

radiation exchange between the steam inside

the pipe and the environment surrounding the

pipe. The pipe shields the environment

surrounding the pipe from the steam. 2. The

examinee's equation "Total heat Loss =

Conductive Radiation" is not satisfactory.

In attempting to evaluate the heat transfer

from the insul[a] ted pipe, [he] assumed that

the outer surface heat transfer coefficient

was very high; 3.0 is not high.

The examinee made no attempt to evaluate the

payback period for the insulation.

There has been no showing that the foregoing analysis was in any

way flawed.

14. For the errors made by Petitioner in his solution to

Problem 147, a 50% "grade reduction" was warranted pursuant to

the "error analysis" portion of the NCEES scoring plan for this

problem. 1/ The remaining portions of the scoring plan for

Problem 147 provided as follows:

10: Essentially complete and correct

solution. May have one or two minor math,

data, or chart reading errors. . . .

Grade of 8:

A grade of 8 will result from having any

combination of the above listed errors which

causes a grade reduction between 10% and 50%.

A Grade of 6:

A grade of 6 will result from having any

combination of the above listed errors which

causes a grade reduction between 30% and 50%.

Grade of 4: 2/

A grade of 4 will result from having any

combination of the above listed errors which

causes a grade reduction between 50% and 70%.

Grade of 2:

A grade of 2 will result from having any

combination of the above listed errors which

causes a grade reduction between 70% and 90%.

Grade of Zero:

Nothing presented that warrants a grade of at

least 10%.

15. It is unclear from a reading of the NCEES scoring plan

for Problem 147 whether a grade reduction of 50% should result in

a raw score of four or six. The plan is ambiguous in this

regard. While it may be reasonable to interpret the plan as

requiring that a raw score of six be given where there is a grade

reduction of 50%, the plan is also reasonably susceptible to the

interpretation that a 50% grade reduction should result in a raw

score of four, the score Petitioner received for his solution to

Problem 147. It therefore cannot be said that the scoring of his

solution to this problem was inconsistent with the problem's

scoring plan, as reasonably construed.

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'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). 3/ 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. 4/

(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 not

receiving any additional points upon subsequent review and

rescoring, Petitioner requested a "formal 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 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 141, 144,

and 147, Petitioner presented his own testimony (which he was

free to do notwithstanding his interest in the outcome of the

case /5 ), plus the testimony of an independent expert witness,

Jitendra Parikh, P.E. 6/ Significantly, in giving their

opinions regarding the scoring of Petitioner's solutions to the

problems at issue, neither Petitioner, nor Mr. Mr. Parikh, made

any reference to the guidelines and requirements of the NCEES

scoring plans for these problems. They based their opinions

upon, not these guidelines and requirements, but rather their own

personal views as to how points for solutions to these problems

should have been awarded. Their testimony, whether viewed in

isolation or together with the rest of the record evidence (which

consisted exclusively of documentary evidence), fails to

establish that, under no reasonable construction of the NCEES

scoring plans for Problems 141, 144, and 147, would the scores

given to Petitioner for his solutions to these problems be

justified.

26. Moreover, even if Petitioner had persuaded the

undersigned that he (Petitioner) should have received higher

scores from the NCEES 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

141, 144, and 147 of the Principles and Practice of Engineering

portion of the October 29, 1999, 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 29, 1999, engineering licensure examination.

DONE AND ENTERED this 13th day of October, 2000, 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 13th day of October, 2000.

ENDNOTES

1/ Respondent's expert, Ben Cowart, P.E., whose written report

containing his opinion concerning the scoring of Petitioner's

solution to Problem 147 was received into evidence (without

objection) as Respondent's Exhibit 15 (but who did not testify at

hearing), stated in his report that "[t]he total score reduction

for problem #147 should be -50%." At hearing, Petitioner

testified that he did not "have a problem agreeing with him" (Mr.

Cowart) regarding this matter.

2/ The scoring plan for this problem does not authorize an award

of a "grade of 5."

3/ 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.

4/ 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."

5/ See Martuccio v. Department of Professional Regulation , 622

So. 2d 607, 609-10 (Fla. 1st DCA 1993).

6/ Respondent, on the other hand, presented no expert or other

testimony; however, among the 16 exhibits it offered into

evidence (all of which were admitted without objection) were the

" rescoring results" containing the "comments" made by those who

rescored Petitioner's solutions to Problems 141, 144, and 147

(Respondent's Exhibit 3) and the written reports of the expert

Respondent retained for this case, Ben Cowart, P.E., containing

his opinions concerning the scores Petitioner should have

received for these solutions (Respondent's Exhibits 13, 14, and

15).

COPIES FURNISHED:

Rasik V. Chokshi

2415 24th Lane

Palm Beach Gardens, Florida 33418

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.