03-004013RP Christopher Nathaniel Lovett vs. Department Of Business And Professional Regulation, Board Of Professional Engineers Status: Closed DOAH Final Order on Thursday, February 5, 2004.

Summary: Petitioner, in his application for a license, cannot use a rule challenge to challenge the test results and obtain the license since the examination challenge is prohibited by statute.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHRISTOPHER NATHANIEL LOVETT, )

)

Petitioner, )

)

and )

)

HAROLD D. REGISTER, JR., )

)

Intervenor, )

)

vs. ) Case No. 03 - 4013RP

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, BOARD )

OF PROFESSIONAL ENGINEERS, )

)

Respondent . )

)

FINAL ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted a

telephone hearing in this case on January 29, 2004, on behalf of

the Division of Admin istrative Hearings (DOAH). During the

hearing, Petitioner and counsel for Respondent presented oral

argument concerning Petitioner's Amended Motion for Summary

Order (Motion for Summary Order), a written request to intervene

by another unsuccessful examin ee (Petition to Intervene), and

Respondent's Motion to Dismiss or in the Alternative Motion for

Summary Final Order (Motion to Dismiss). The Motion for Summary

Order, Petition to Intervene, and Motion to Dismiss were filed

respectively on January 9, 15, a nd 16, 2004.

APPEARANCES

For Petitioner: Christopher N. Lovett, pro se

1206 East Park Circle

Tampa, Florida 33604

For Respondent: Paul J. Martin, Esquire

Office of the Attorne y General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

STATEMENT OF THE ISSUE

The ultimate issue in this proceeding is whether proposed

Florida Administrative Code Rule 61G15 - 21 is an invalid exe rcise

of delegated legislative authority.

PRELIMINARY STATEMENT

On October 29, 2003, Petitioner filed with DOAH a Petition

for Formal Hearing (Petition for Hearing) contesting changes to

Florida Administrative Code Rule 61G15 - 21.004(2) that are

proposed by the Florida Board of Professional Engineers (the

Board). The parties agreed to several continuances, and an

administrative hearing is set for February 9, 2004.

Petitioner and Respondent do not object to the Petition to

Intervene. The Petition to Intervene is granted.

The Motion for Summary Order, in relevant part, asks the

ALJ to order Respondent to provide the ALJ with raw scores that

Petitioner earned on an examination Petitioner took for a

license as a professional engineer; to review the raw scores;

and to determine that "Petitioner has met the . . . requirements

to take the P.E. Exam." Motion for Summary Order at 2, para. 4.

The Motion for Summary Order is denied for lack of

jurisdiction. For reasons discussed in the Conclusions of Law,

the ALJ has no jurisdiction in a rule challenge proceeding

conducted pursuant to Section 120.56, Florida Statutes (2003),

to determine an applicant's qualification to take an examination

for a professional license. The relevant statute limits the

ALJ's au thority to a determination of whether the proposed rule

is an invalid exercise of delegated legislative authority.

The ALJ did not conduct an administrative hearing in this

proceeding. The Findings of Fact and Conclusions of Law are

based on factual alleg ations in the Petition for Hearing,

undisputed facts, and Petitioner's explanation of his position

during the motion hearing conducted by telephone on

January 29, 2004.

FINDINGS OF FACT

1. Florida Administrative Code Rule 61G15 - 21.004, in

relevant part, states:

(1) The criteria for determining the

minimum score necessary for passing the

Engineering Fundamentals Examination shall

be developed through the collective judgment

of qualified experts appointed by NCEES to

set the raw score that represents the

minimum amount of knowledge necessary to

pass the examination. The judges shall use

a Modified Angoff Method in determining the

minimally acceptable raw score necessary to

pass the Fundamentals of Engineering

Examination. Using the above mentioned

Modifi ed Angoff Method, the judges will

indicate the probability that a minimally

knowledgeable Fundamentals of Engineering

examinee would answer any specific questions

correctly. The probability of a correct

response is then assigned to each question.

Each ju dge will then make an estimate of the

percentage of minimally knowledgeable

examinees who would know the answer to each

question. The totals each of the judges is

added together and divided by the number of

judges to determine the overall estimate of

the minimum standards necessary. The

minimum number of correct answers required

to achieve a passing score will take into

account the relative difficulty of each

examination through scaling and equating

each examination to the base examination.

The raw score necessary to show competence

shall be deemed to be a 70 on a scale of

100.

(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 f amiliar 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 it em (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

lo wer will be considered an unsatisfactory

score for that item and 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 -

eig ht (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).

2. The proposed changes to Florida Administrative Code

Rule 61G15 - 21.004, in releva nt part, state:

(1) The passing grade for the Engineering

Fundamentals Examination is 70 or better.

The criteria for determining the minimum

score necessary for passing the Engineering

Fundamentals Examination shall be developed

through the collective ju dgment of qualified

experts appointed by NCEES to set the raw

score that represents the minimum amount of

knowledge necessary to pass the examination.

The judges shall use a Modified Angoff

Method in determining the minimally

acceptable raw score necessar y to pass the

Fundamentals of Engineering Examination.

Using the above mentioned Modified Angoff

Method, the judges will indicate the

probability that a minimally knowledgeable

Fundamentals of Engineering examinee would

answer any specific questions corre ctly.

The probability of a correct response is

then assigned to each question. Each judge

will then make an estimate of the percentage

of minimally knowledgeable examinees who

would know the answer to each question. The

totals each of the judges is adde d together

and divided by the number of judges to

determine the overall estimate of the

minimum standards necessary. The minimum

number of correct answers required to

achieve a passing score will take into

account the relative difficulty of each

examinati on through scaling and equating

each examination to the base examination.

The raw score necessary to show competence

shall be deemed to be a 70 on a scale of

100.

(2) The passing grade for the Principles

and Practice Examination is 70 or better.

A pas sing 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 engineeri ng 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 examinee will be

consi dered 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 t o a base 100 on which, as is

noted above, a passing grade will be seventy

(70).

3. Petitioner resides in Tampa, Florida. On April 11,

2003, Petitioner took a national examination that Petitioner

must pass to be licensed by the state as a professiona l

engineer.

4. On July 1, 2003, Petitioner received a letter from the

Board advising Petitioner that he had received a failing grade

on the examination. On July 2, 2003, Petitioner unsuccessfully

requested the raw scores on his examination from a

repr esentative of the National Council of Examiners for

Engineering and Surveying (NCEES). The NCEES is the national

testing entity that conducts examinations and determines scores

for the professional engineer examination required by the state.

5. On July 9, 2003, Petitioner submitted a formal request

to the Board for all of the raw scores related to Petitioner

"and all past P.E. Exams that the Petitioner had taken."

A representative of the Board denied Petitioner's request

explaining that the raw sco res are kept by the NCEES and "it is

not their policy to release them." The Board's representative

stated that the Board was in the process of adopting new rules

"that were in - line with the policies of the NCEES."

6. On July 31, 2003, Petitioner reque sted the Board to

provide Petitioner with any statute or rule that authorized the

Board to deny Petitioner's request for raw scores pursuant to

Section 119.07(1)(a), Florida Statutes (2003). On the same day,

counsel for the Board explained to Petitioner t hat the Board is

not denying the request. The Board is unable to comply with the

request because the Board does not have physical possession of

the raw scores. Petitioner and counsel for Respondent engaged

in subsequent discussions that are not material to this

proceeding.

7. On August 6, 2003, Petitioner requested counsel for

Respondent to provide Petitioner with copies of the proposed

rule changes that the Board intended to consider on August 8,

2003. On August 27, 2003, Petitioner filed a petiti on with the

Board challenging existing Florida Administrative Code Rule

61G15 - 21.004. The petition alleged that parts of the existing

rule are invalid.

8. Petitioner did not file a challenge to the existing

rule with DOAH. The Petition for Hearing s tates that Petitioner

is filing the Petition for Hearing pursuant to Subsections

120.56(1) and (3)(b), Florida Statutes (2003). However, the

statement of how Petitioner's substantial interests are affected

is limited to the proposed changes to the existin g rule.

9. During the hearing conducted on January 29, 2004,

Petitioner explained that he does not assert that the existing

rule is invalid. Rather, Petitioner argues that the Board

deviates from the existing rule by not providing examinees with

copies of their raw scores and by failing to use raw scores in

the determination of whether an applicant achieved a passing

grade on the exam.

10. Petitioner further argues that the existing rule

benefits Petitioner by purportedly requiring the Board to use

raw scores in the determination of passing grades. The

elimination of that requirement in the proposed rule arguably

will adversely affect Petitioner's substantial interests.

11. The Petition for Hearing requests several forms of

relief. The Petition for Hearing seeks an order granting

Petitioner access to raw scores, a determination that Petitioner

has met the minimum standards required under the existing rule,

and an order that the Board grant a license to Petitioner. The

Petition for Hearing does not request an order determining that

the proposed rule changes constitute an invalid exercise of

delegated legislative authority.

CONCLUSIONS OF LAW

12. DOAH has jurisdiction over the parties. § 120.56,

Fla. Stat. (2003). However, DOAH does not have s ubject matter

jurisdiction to grant the relief requested in the Petition for

Hearing.

13. Section 120.56, Florida Statutes (2003), limits DOAH's

authority is this proceeding to a determination of whether the

proposed rule changes are an invalid exercise of delegated

legislative authority. Section 120.56, Florida Statutes (2003),

does not authorize the ALJ to grant the relief requested in the

Petition for Hearing. The Petition for Hearing does not request

the relief authorized in Section 120.56, Florida Statutes

(2003).

14. It is undisputed that Petitioner took a national

examination approved by the Board and certified by the

Department of Business and Professional Regulation (the

Department) in accordance with the requirements of Section

455.217(1)(d ), Florida Statutes (2003). National examinations

approved and administered pursuant to Section 455.217(1)(d),

Florida Statutes (2003) (national examinations), including the

examination taken by Petitioner, are expressly exempt from the

mandate in Section 455.217(3), Florida Statutes, which requires

the Department to provide procedures for applicants to review

their examination questions, answers, papers, grades, and

grading keys.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that this case is dismissed with prejudice for lack

of jurisdiction. The administrative hearing scheduled for

February 9, 2004, is cancelled.

DONE AND ORDERED this 5th day of February, 2004, in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

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 (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of February, 2004.

COPIES FURNISHED :

Nancy P. Campiglia, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 220 2

Christopher N. Lovett

1206 East Park Circle

Tampa, Florida 33604

Paul J. Martin, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

Harold D. Register, Jr.

ice Lane

Crawfordville, Florida 32327

Douglas Sunshine, Esquire

Florida Engineers Management Corporation

2507 Callaway Road, Suite 200

Tallahassee, Florida 32303

Natalie A. Lowe, Executive Director

Board of Professional Engineers

Department of Business and

Professional Regulation

2507 Ca llaway Road

Tallahassee, Florida 32303 - 5267

Diane Carr, Secretary

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Scott Boyd, Acting Executive Director

and General Counsel

Joint Administrative Procedures Committee

120 Holland Building

Tallahassee, Florida 32399 - 1300

Liz Cloud, Chief

Bureau of Administrative Code

The Elliott Building, Room 201

Tallahassee, Florida 32399 - 0250

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party w ho is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original N otice of Appeal with the agency clerk of

the Division of Administrative Hearings and a copy, accompanied

by filing fees prescribed by law, with the District Court of

Appeal, First District, or with the District Court of Appeal in

the Appellate District whe re the party resides. The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.