97-003500 Pablo R. Valerio vs. Board Of Professional Engineers Status: Closed Recommended Order on Thursday, December 11, 1997.

Summary: Licensure exam, including question not specifically challenged, was properly re-graded.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PABLO R. VALERIO, )

)

Petitioner, )

)

vs. ) Case No. 97-3500

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, BOARD )

OF PROFESSIONAL ENGINEERS, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

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

on October 9, 1997, via video in Tallahassee and Miami, Florida,

before Claude B. Arrington, a duly designated Administrative Law

Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Pablo R. Valerio, pro se

7741 Wayne Avenue, Apartment 1R

Miami Beach, Florida 33141

For Respondent: R. Beth Atchison, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0750

STATEMENT OF THE ISSUES

Whether Petitioner is entitled to additional credit for his

responses to the "Principles and Practice" portion of the

electrical engineer examination administered by Respondent in

October 1996.

PRELIMINARY STATEMENT

Petitioner took the "Principles and Practice" portion of the

electrical engineer licensure examination administered by

Respondent in October 1996. After being notified that he did not

receive a passing grade on this portion of the examination,

Petitioner timely challenged the scoring of his answers to

Question 130 and Question 132 of the exam. Petitioner thereafter

requested a formal hearing, the dispute was referred to the

Division of Administrative Hearings, and this proceeding

followed.

Respondent caused Petitioner's responses to the "Principles

and Practice" portion of the exam to be re-graded. Following the

re-grading, Respondent asserted that Petitioner was entitled to

no additional points for his answer to Question 130, that

2 additional points should be added to the initial grade for his

response to Question 132, but that 2 points should be deducted

from the initial grade for his response to Question 131.

Respondent's position was that no additional net credit should be

awarded.

At the formal hearing, Petitioner testified on his own

behalf, but presented no exhibits. During the course of the

formal hearing, Petitioner cited certain reference material in

support of his position. Petitioner was offered the opportunity

to submit a copy of that reference material as a late-filed

exhibit, but he did not do so.

Respondent presented the testimony of Amauri Antonio Arroyo,

who was permitted to express opinions within the scope of his

expertise in electrical contracting. Respondent offered five

exhibits, each of which was admitted into evidence.

A transcript of the proceedings has been filed. At the

request of the parties, the time for filing post-hearing

submissions was set for more than ten days following the filing

of the transcript. Consequently, the parties waived the

requirement that a recommended order be rendered within thirty

days after the transcript is filed. Rule 60Q-2.031, Florida

Administrative Code. The Petitioner and Respondent filed post-

hearing submittals, which have been duly considered by the

undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner took the electrical engineer licensing

examination administered by Respondent in October 1996.

2. Respondent is the agency of the State of Florida with

the duty to regulate the practice of electrical engineering in

Florida. Pursuant to Section 471.015, Florida Statutes, an

applicant for licensure as an electrical engineer is required to

successfully pass both parts of a licensure examination. 1

3. The electrical engineer licensure examination at issue

in this proceeding was developed and graded by the National

Council of Examiners for Engineering and Surveying (NCEES).

4. Following the initial grading of the "Principles and

Practice" section of the exam, Petitioner was awarded a score

of 68. A total score of 70 was required to pass that portion of

the examination.

5. Petitioner thereafter timely challenged the grading of

two questions on the "Principles and Practice" portion of the

exam. His challenge was limited to Questions 130 and 132.

Petitioner did not specifically challenge Question 131.

6. In response to that challenge, Respondent sent

Petitioner’s examination package back to NCEES to have the

"Principles and Practice" portion of the examination re-graded.

NCEES re-graded all of Petitioner's answers to the "Principles

and Practice" portion of the examination, including his responses

to Questions 130, 131, and 132.

7. NCEES initially awarded Petitioner a score of 2 points

for his answer to Question 130. When the answer was re-graded,

Petitioner was not awarded any additional credit for his answer

to Question 130. The record in this proceeding established that

Petitioner's answer to Question 130 was properly re-graded.

Petitioner is not entitled to any additional credit for his

response to Question 130.

8. NCEES initially awarded Petitioner a score of 2 points

for his answer to Question 132. When the answer was re-graded,

Petitioner was awarded a score of 4 points for his answer to

Question 132. The record in this proceeding established that

Petitioner's answer to Question 132 was properly re-graded.

Petitioner is entitled to a score of 4 points for his answer to

Question 132.

9. NCEES initially awarded Petitioner a score of 8 points

for his answer to Question 131. When the answer was re-graded,

Petitioner was awarded a score of 6 points for his answer to

Question 131. The record in this proceeding established that

Petitioner's answer to Question 131 was properly re-graded.

Petitioner is entitled to a score of 6 points for his answer to

Question 131. Petitioner is not entitled to a score of 8 for his

answer to Question 131.

10. Each of the three questions at issue in this proceeding

is a problem that requires multiple steps and computations to

solve. If a candidate correctly answers all parts of the

question a score of 10 points is awarded. Partial credit can be

awarded based on how many of the parts of the question are

correctly answered. There is no allegation that the three

questions involved in this proceeding are ambiguous or otherwise

inappropriate for a licensure examination.

11. The record is not clear when Respondent notified

Petitioner of its position following the re-grading of the

questions at issue. It is clear that Petitioner was aware of

Respondent's position prior to the start of the formal hearing.

During the formal hearing and in his post-hearing submittal,

Petitioner challenged Respondent's right to re-grade Question 131

since he had not specifically challenged that question.

Petitioner has not asserted that he was provided insufficient

notice of Respondent's position.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction of the parties to and the subject of this

proceeding. Section 120.57(1), Florida Statutes.

13. Pursuant to Chapter 471, Florida Statutes, Respondent

has the responsibility to license engineers, including electrical

engineers, in Florida. Respondent administers the licensure

examination that a candidate, such as Petitioner, must pass

before being entitled to licensure as an electrical engineer.

14. Pursuant to Section 471.015, Florida Statutes,

Petitioner is entitled to licensure as an electrical engineer if

he can establish that he passed that licensure examination.

15. Petitioner has the burden of proving by a preponderance

of the evidence that he is entitled to additional credit for his

responses to the examination question. See Florida Department of

Transportation v. J.W.C. Co. , 396 So. 2d 778 (Fla. 1st DCA 1981).

Since the examination questions have not been challenged,

Petitioner, to prevail, must establish, by a preponderance of the

evidence, that for some reason he 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 (Fla. 3d DCA 1986); State ex rel. I. H. Topp v.

Board of Electrical Contractors for Jacksonville Beach, Florida ,

101 So. 2d 583 (Fla. 1st DCA 1958); and State ex rel. Glaser v.

J. M. Pepper , 155 So. 2d 383 (Fla. 1st DCA 1963). Petitioner

failed to establish that he was entitled to additional credit for

his answer to Question 130. The record established that

Petitioner was entitled to 2 additional points for his answer to

Question 132. The award of this additional credit is not

disputed by Respondent.

16. As the party asserting the affirmative of the issue,

the burden shifted to Respondent to establish that 2 points

should be deducted from Petitioner's response to Question 131.

Respondent met that burden.

17. Petitioner's assertion that Respondent is limited to

re-grading only the specific questions he challenged should be

rejected. The challenge to the grading of those two question

initiated a de novo 2 proceeding, not an appeal. Because this is

a de novo proceeding, Respondent had the authority and the

responsibility to determine whether other questions on that

portion of the examination were incorrectly graded. When it

discovered what it considered an error in the grading of

Question 131, Respondent was entitled to assert that deductions

should be made from the initial grading.

18. Petitioner is not entitled to any net additional credit

to the "Principles and Practice" portion of the examination.

Petitioner did not pass that portion of the examination.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Respondent enter a Final Order that

awards Petitioner a score of 68 on the "Principles and Practice"

portion of the October 1996 licensure examination.

DONE AND ENTERED this 11th day of December, 1997, in

Tallahassee, Leon County, Florida.

___________________________________

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of December, 1997.

ENDNOTES

1/ Rule 61G15-21.002, Florida Administrative Code, describes the

two parts of the licensure examination. Rule 61G15-21.004(2),

Florida Administrative Code, describes how part two of the exam,

the "Principles and Practice" portion of the exam, is to be

graded.

2/ See Section 120.57(1)(i), Florida Statutes.

COPIES FURNISHED:

Mr. Pablo R. Valerio

7441 Wayne Avenue

Apartment 1R

Miami Beach, Florida 33141

R. Beth Atchison, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0750

Angel Gonzalez, Executive Director

Board of Professional Engineers

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Lynda L. Goodgame, General Counsel

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.

1 Rule Chapter 61G15-21.002, Florida Administrative Code,

describes the two parts of the licensure examination. Rule

61G15-21.004(2), Florida Administrative Code, describes how part

two of the exam, the "Principles and Practice" portion of the

exam, is to be graded. 2

See, Section 120.57(1)(i), Florida Statutes.