00-003492 Yvette Bowman vs. Florida Engineers Management Corporation Status: Closed Recommended Order on Wednesday, December 27, 2000.

Summary: No evidence was presented giving the challenger credit for challenged questions on the engineering licensure examination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

YVETTE BOWMAN, )

)

Petitioner, )

)

vs. ) Case No. 00-3492

)

FLORIDA ENGINEERS MANAGEMENT )

CORPORATION, )

)

Respondent. )

)

RECOMMENDED ORDER

On November 20, 2000, a formal administrative hearing was

held in this case in Tampa, Florida, before Jeff B. Clark,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Yvette Bowman, pro se

3401 North Lakeview Drive

Apartment 216

Tampa, Florida 33618

For Respondent: Douglas D. Sunshine, Esquire

Florida Engineers Management Corporation

1208 Hays Street

Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

Whether Petitioner is entitled to credit for her answers to

questions 55 p.m. and 56 p.m. on the Fundamentals of Engineering

portion of the engineering licensure examination given on

April 15, 2000.

PRELIMINARY STATEMENT

On April 15, 2000, Petitioner, Yvette Bowman, sat f or the

Engineering Intern Examination. After she reviewed the test

results (she had a raw score of 105, a passing score was 107) by

letter to the Board of Professional Engineers dated August 1,

2000, she requested a review of five questions. By e-mail

messages dated August 7 and August 14, 2000, Petitioner

requested a formal hearing challenging five questions. On

August 17, 2000, the Florida Board of Professional Engineers

forwarded the petition for formal hearing (examination

challenge) to the Division of Administrative Hearings.

On August 22, 2000, an Initial Order was forwarded to

Petitioner and Respondent, Florida Engineers Management

Corporation. The final hearing was initially scheduled for

October 10, 2000. On a Motion for Continuance by the

Respondent, the final hearing was rescheduled for November 10,

2000.

Petitioner, Yvette Bowman, testified on her own behalf;

Respondent presented one witness, Frank Hutchison, P.E., an

examination preparation consultant for the Council of Examiners

for Engineering and Surveying, who was accepted by the

Administrative Law Judge as an expert witness. Petitioner had

initially challenged five questions; at the opening of the

hearing, Petitioner announced that she was withdrawing her

challenge to three of the five questions, leaving questions 55

p.m. and 56 p.m. subject to challenge; these two questions were

ethical questions.

Petitioner offered no exhibits; Respondent offered Exhibit

Nos. 1, 2, 3, 4, 9, 10, and 13, which were admitted into

evidence. At the conclusion of the evidentiary portion of the

hearing, the parties were advised of their right to file

proposed recommended orders and a deadline of 10 days after the

filing of the transcript was established. The Transcript of the

hearing was filed with the Division of Administrative Hearings

on December 11, 2000. A Proposed Recommended Order was

received from Respondent and was considered.

Examination questions (Exhibits 9 and 10) are sealed and

not available for public investigation pursuant to Section

456.014(2), Florida Statutes. The Transcript of the hearing

which contains certain specific references to the examination

questions is also sealed.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence

received at the hearing, the following relevant findings of fact

are made:

1. The examination for licensure of an engineer in the

State of Florida is administered by the Florida Engineers

Management Corporation, a not-for-profit corporation, created

under Section 471.038, Florida Statutes. A written examination

is authorized by Rule 61G15-21.001, Florida Administrative Code.

2. Respondent contracts with the National Council of

Examiners for Engineering and Surveying to provide engineering

licensure examinations. This practice is approved by Section

455.217, Florida Statutes, and Rule 61G1 5-21.005, Florida

Administrative Code. The National Council of Examiners for

Engineering and Surveying develops standardized tests given for

licensure throughout the United States and ensures that the

questions are not ambiguous through a number of methodologies.

3. A candidate for licensure as an engineer intern must

attain a "scaled" score of 70 to pass the examination. On the

examination taken by Petitioner, the minimum "raw" score

required to attain a "scaled" score of 70 was 107; Petitioner's

"raw" score was 105.

4. Petitioner had initially challenged five questions; at

the hearing, Petitioner withdrew her challenge to three

questions; the two remaining challenged questions (55 p.m. and

56 p.m.) were "ethical" questions, i.e., they dealt with

questions of engineering ethics.

5. The challenged questions were multiple-choice

questions. The test gives the following directions: "Each of

the questions or incomplete sentences below is followed by four

suggested answers or completions. Select the one that is the

best in each case and then fill in the corresponding space on

the answer sheet." (Emphasis added.)

6. The challenged question 55 p.m. deals with an engineer

hired to prepare a report on the design, manufacture, and

assembly of a structure. The report contains references to

"shoddy workmanship."

7. Petitioner states that while she agreed that answer A

[the graded "correct" answer] is correct, she believed that the

inclusion of the word "also" in answer B included answer A in

answer B by reference and therefore she chose B as her answer.

8. Petitioner acknowledges that the word "also" in answer

B could be referring to language in the question rather than in

answer A.

9. Answer A specifically refers to "engineering issues"

which the engineer is "qualified to assess"; answer B indicates

that the references to "shoddy workmanship" are "personal

opinions" and "not professional opinions".

10. An engineer is obligated by his license n ot to give an

opinion for which he does not have expertise. An engineer

should not render a personal opinion in a report in which the

engineer gives a professional opinion.

11. The challenged question 56 p.m. deals with an engineer

who lacks expertise dealing with space frames but designed

structures which included same.

12. Regarding challenged question 56 p.m., the Petitioner

acknowledged that answer A (the graded "correct" answer) could

have been the correct answer as well as the answer she chose,

answer D.

13. Answer D indicates that the engineer was unethical

because he did not refer that matter to the Registration Board.

14. An engineer should not contact the Registration Board

and report to the Board that someone has asked him to do

something unethical; it is incumbent upon an engineer to

practice engineering ethically without the input of the Board.

15. In both instances in answering the challenged

questions the Petitioner failed to provide the "best" answer and

at hearing acknowledged that the graded "correct" answer by the

National Council of Examiners for Engineering and Surveyors was

a "correct" answer even though she chose a different answer.

CONCLUSIONS OF LAW

16. The Division of Administration Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to Section 120.57(1), Florida Statutes.

17. The burden of proof is on the party asserting the

affirmative of an issue before an administrative tribunal.

Florida Department of Transportation v. J.W.C. Company, Inc. ,

396 So. 2d 778 (Fla. 2d DCA 1981). To succeed in her challenge

to the examination, Petitioner must establish, by a

preponderance of the evidence, that the examination was somehow

faulty, was arbitrarily or capriciously worded, or that she was

arbitrarily or capriciously denied credit through a grading

process devoid of logic or reason. Harac v. Department of

Professional Regulation , 484 So. 2d 1333, 1338 (Fla. 3d DCA

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

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

Contractors for Jacksonville Beach, Florida , 101 So. 2d 583

(Fla. 1st DCA 1958).

18. Petitioner failed to satisfy her burden regarding

having correctly answered challenged questions 55 p.m. and

56 p.m.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Florida Engineers Management

Corporation enter a final order denying Petitioner's challenge

to questions 55 p.m. and 56 p.m.

DONE AND ENTERED this 27th day of December, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Flo rida 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 27th day of December, 2000.

COPIES FURNISHED :

Yvette Bowman

3401 North Lakeview Drive

Apartment 216

Tampa, Florida 33618

Douglas D. Sunshine, Esquire

Florida Engineers Management Corporation

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

Dennis Barton, Executive Director

Board of Professional Engineers

Department of Business

and Professional Regulation

1208 Hays Street

Tallahassee, Florida 32301

Natalie A. Lowe, Esquire

Vice President for Legal Affairs

Florida Engineers Management Corporation

1208 Hays Street

Tallahassee, Florida 32301

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.