01-000257 Giovanni L. Campodonico vs. Department Of Business And Professional Regulation, Board Of Professional Engineers Status: Closed Recommended Order on Friday, May 4, 2001.

Summary: Petitioner challenged three essay questions on the Civil Engineer Examination. Petitioner failed to demonstrate that he was entitled to additional credit. Ineligible for licensure.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GIOVANNI L. CAMPODONICO , )

)

Petitioner , )

)

vs. ) Case No. 01-0257

)

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 March 16, 2001, at sites located in

Miami and Tallahassee, Florida, before Errol H. Powell, a

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner : Giovanni L. Campodonico, pro se

9970 Southwest 88th Street

Apartment No. 11

Miami, Florida 33176

For Respondent : Douglas D. Sunshine, Esquire

Florida Engineers Management Corporation

1208 Hays Street

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue for determination is whether Petitioner

successfully completed the Civil/Sanitary Engineer Examination

on April 14, 20 00, of the Board of Professional Engineers.

PRELIMINARY STATEMENT

On April 14, 2000, Giovanni L. Campodonico (Petitioner)

took the Civil/Sanitary 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 ) 1 notified Petitioner that he

did not successfully complete the Examination, having received a

score of 69. Petitioner challenged the score that he received,

specifically, challenging questions numbered 120, 124, and 211,

and requested a hearing. On January 17, 2001, this matter was

referred to the Division of Administrative Hearings.

At hearing, Petitioner testified in his own behalf and

entered three exhibits (Petitioner's Exhibits numbered 1-3) into

evidence. One of Petitioner's exhibits (Petitioner's Exhibit

numbered 4) was rejected. Respondent presented the testimony of

one witness (an expert) and entered 13 exhibits (Respondent's

Exhibits numbered 1-13) 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 ten days following the filing of the transcript. The

Transcript, consisting of one volume, was filed on April 5,

2001. The parties timely filed their post-hearing submissions,

which have been considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. On April 14, 2000, Petitioner took the Examination.

2. The minimum score required to pass the Examination was

70. Respondent notified Petitioner that he had not successfully

completed the Examination, having received a score of 69.

3. The Examination is a national examination and is graded

by national examiners, i. e. , the National Council of Examiners

for Engineering and Surveying ( NCEES). A separate scoring plan

is used for grading each essay question. A separate scorer is

used for each essay question, generally scores a given question

for all of the Examination. The identity of the

candidate/examinee by name is not revealed; the

candidate/examinee is given a number and is identified by the

number given to him/her.

4. By letter dated September 19, 2000, Petitioner notified

Respondent that he was challenging essay questions numbered 120,

124, and 211 on the Examination and that he was requesting a re-

scoring of those questions. Petitioner completed a Request for

Review of Examination Item form for each question and included,

from his point of view, why he should be afforded additional

credit and what score he should receive for each question.

5. Petitioner's Examination was returned to the NCEES for

review and rescoring. NCEES' rescorer used the same scoring

plan that was used for the Examination. NCEES' rescorer

recommended that Petitioner receive no additional points for

questions numbered 120, 124, and 211 and included a detailed

rationale for the recommended score of each challenged question.

NCEES determined that Petitioner was not entitled to additional

credit and further determined that Petitioner's total raw score

of 47, equivalent to a total score of 69, would not be changed.

6. The maximum score achievable for each essay question

was ten points, with points subtracted for various reasons as

provided in the scoring plan. The score for each essay question

was rounded to the next highest even number, resulting in a

score of 0, 2, 4, 6, 8, or 10.

7. For question numbered 120, Petitioner received a score

of eight points. Petitioner challenges only one part of

question numbered 120, regarding his computation of the ultimate

bearing capacity for a given footing.

8. For question numbered 120, Petitioner ignored the

correction in the requirement for the mid-height water table.

He quoted an equation from a reference material but failed to

include the correction for the water table in his equation.

Furthermore, even though Petitioner incorrectly calculated the

effective weight of the soil, he failed to include in the

question what he had calculated.

9. The scoring plan for question numbered 120 requires a

two-point reduction if the correction for the water table is

ignored.

10. Petitioner failed to correctly answer the challenged

portion of question numbered 120. Petitioner should receive a

score of eight points and, therefore, should not receive any

additional points.

11. For question numbered 124, Petitioner received a score

of 6 points. Petitioner challenges only one part of question

numbered 124, regarding his determination of the maximum sight

distance obtainable in the given situation. Petitioner contends

that the challenged part was improper, arbitrary, subjective,

and open to interpretation.

12. The challenged part of question numbered 124 asked the

candidate to determine the maximum distance from the eye to the

top of a six-inch high object on the road. It is clear that the

challenged part asked for the determination as to how far one

can see in a straight line before something obstructs one's

view. In making the determination, no additional factors were

to be considered, such as what the headlight factor was, or what

the ability of a car to stop was, or what the conditions of the

road were, or any other factor. Petitioner assumed additional

factors. He assumed the sight distance for a sag vertical curve

as a stopping sight distance.

13. In calculating the distance, Petitioner made no

reference to the obstruction in the calculation formula. His

answer had a numerical difference from the correct answer of

more than ten percent. The difference was 69 percent.

14. The challenged part of question numbered 124 was not

arbitrary, capricious, improper, subjective, or open to

interpretation.

15. According to the scoring plan, Petitioner's answer for

question numbered 124 requires a two point reduction.

16. Petitioner failed to correctly answer the challenged

portion of question numbered 124. Petitioner should receive a

score of six points and is, therefore, not entitled to receive

any additional points.

17. For question numbered 211, Petitioner received a score

of four points. Petitioner challenges the question to the

extent that he asserts that he answered 75 percent of the

question correctly and, therefore, should receive a score of at

least six points.

18. Question numbered 211 is a two-part question.

Petitioner admits that he made numerical errors in his solution

and that he failed to answer the second part of the question.

19. Petitioner contends that he had insufficient time to

answer the second part and that, if he had sufficient time, he

would have performed re-calculations and would have been able to

demonstrate his understanding of the principles of pumps in

series and pumps in parallel. Regardless of Petitioner's

contention, his failure to answer the second part of the

question was what was before the scorer and re-scorer and was

reasonably determined to demonstrate that he failed to

understand the development of a pump curve for pumps in series.

Failure to demonstrate understanding of the development of a

pump curve for pumps in series constitutes, according to the

scoring plan, a fundamental error.

20. Because of his errors in the solution and his failure

to answer one part, the scoring plan requires that Petitioner

receive a score of four points.

21. Petitioner should receive a score of four points and

is, therefore, not entitled to receive any additional points.

22. Petitioner's answers were not arbitrarily or

capriciously graded. The grading was not devoid of logic and

reason. The scoring plan was properly used.

23. At hearing, Petitioner demonstrated a great deal of

knowledge regarding the challenged questions. However, he

failed to demonstrate such knowledge on the Examination.

24. Petitioner's score on the Examination should not be

changed and, therefore, should remain at 69. Petitioner has not

obtained the minimum score required to pass the Examination.

CONCLUSIONS OF LAW

25. 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.

26. Petitioner, as the applicant, has the ultimate burden

of proof to establish that he is entitled to licensure as a

professional engineer. Florida Department of Transportation v.

J.W.C. Company, Inc. , 396 So. 2d 778, 788 (Fla. 1st DCA 1981).

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

a preponderance of evidence that the Examination was faulty,

that the question on the Examination was worded arbitrarily or

capriciously, that his answers to the question 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).

28. Petitioner challenges the grading of his answers to

questions numbered 120, 124, and 211. He failed to satisfy his

burden and, therefore, failed to demonstrate that he is entitled

to additional points. Petitioner's total score remains at 69,

and he has failed to obtain the minimum score required to pass

the Examination, which is 70.

29. The undersigned is not persuaded by Respondent's

argument that Petitioner, even if he was entitled to additional

credit, could not be granted additional credit by Respondent

because, by its own rule, Respondent must accept the grading by

NCEES of the Examination without modification. Rules 61-

11.012(1) and 61-11.010(1)(a), Florida Administrative Code.

Regardless, the undersigned has determined that Petitioner is

not entitled to additional credit.

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 finding Giovanni L. Campodonico ineligible for

licensure.

DONE AND ENTERED this 4th day of May, 2001, 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

(850) 488- 9675 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 May, 2001.

ENDNOTE

1/ The Respondent in this case is the Department of Business

and Professional Regulation, Board of Professional Engineers,

not the Florida Engineers Management Corporation, as asserted by

Respondent's counsel. Section 471.005, Florida Statutes,

provides in pertinent part:

(1) "Board" means the Board of Professional

Engineers.

(2) "Board of directors" means the board of

directors of the Florida Engineers

Management Corporation.

* * *

(4) "Department" means the Department of

Business and Professional Regulation.

* * *

(9) "Management corporation" means the

Florida Engineers Management Corporation.

Section 471.038, Florida Statutes, provides in pertinent part:

(1 ) This section may be cited as the

"Florida Engineers Management Corporation

Act."

(2 ) The purpose of this section is to

create a public-private partnership by

providing that a single nonprofit

corporation be established to provide

administrative, investigative, and

prosecutorial services to the board and that

no additional nonprofit corporation be

created for these purposes.

(3 ) The Florida Engineers Management

Corporation is created to provide

administrative, investigative, and

prosecutorial services to the board in

accordance with the provisions of chapter

455 and this chapter. . . . The provisions

of s. 768.28 apply to the management

corporation, which is deemed to be a

corporation primarily acting as an

instrumentality of the state, but which is

not an agency within the meaning of s.

20.03(11). The management corporation

shall:

* * *

(b ) Provide administrative, investigative,

and prosecutorial services to the board in

accordance with the provisions of chapter

455, this chapter, and the contract required

by this section.

* * *

( i ) Operate under an annual written

contract with the department which is

approved by the board. . . .

* * *

(4 ) The management corporation may not

exercise any authority specifically assigned

to the board under chapter 455 or this

chapter, including determining probable

cause to pursue disciplinary action against

a licensee, taking final action on license

applications or in disciplinary cases, or

adopting administrative rules under chapter

120.

COPIES FURNISHED:

Giovanni L. Campodonico

9970 Southwest 88th Street

Apartment No. 11

Miami, Florida 33176

Douglas D. Sunshine, Esquire

Florida Engineers Management Corporation

1208 Hays Street

Tallahassee, Florida 32301

William Woodyard, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Jim Rimes, Executive Director

Board of Professional Engineers

Department of Business and

Professional Regulation

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.