vs. ) CASE NO. 81-2764
Respondent. )
Pursuant to notice, this cause came on for administrative hearing on February 9, 1982 in Coral Gables, Florida before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings.
For Respondent: John J. Rimes, Esquire
The Petitioner, Albert Poza, is an applicant for licensure by examination to practice architecture in the state of Florida. The Petitioner took the design and site plan portion of the National Architectural examination duly adopted in Florida in June, 1981. The other part of the architectural examination, the written examination, is administered in December of each year and is not at issue in this proceeding. Subsequent to that date the Board determined and notified the Petitioner that he had failed to successfully pass the examination and informed him of his rights to review and appeal his grade. He availed himself of that right and on September 29, 1981 received a review of his examination and grade in the office of the Executive Director of the Board of Architecture, Herbert Coons. Subsequent to the review session, the Petitioner availed himself of his right to initiate this formal proceeding pursuant to Section 120.57(1), Florida Statutes.
During the course of the hearing the Petitioner presented two witnesses and one composite exhibit. The Respondent presented one witness and one deposition in support of its case and one exhibit. One of the Petitioner's witnesses, an architect, was accepted as an expert witness. Both of the Respondent's witnesses are architects and examination graders and were accepted as experts
both in the area of architectural design as well as the grading of architectural examinations. The issue to be resolved in this proceeding is whether the Petitioner's performance on the design and site planning portion of the architectural examination was adequate to justify his licensure as an architect. Both parties timely filed proposed findings of fact and conclusions of law.
The Petitioner, Albert Poza, applied for licensure by examination to practice architecture in the state of Florida. The architectural licensure examination administered by the Respondent consists of two portions, the written examination given in December of each year and the site planning and design portion administered in June of each year. The Petitioner has complied with all requirements for admittance to the subject examination.
The Petitioner sat for a twelve hour examination consisting of a drafting or sketching problem concerning which he was required to design a particular type of building to be accommodated to a particular site, taking into consideration numerous design and site considerations such as human traffic flow, parking, access to all floors, heating and cooling, including natural heating and lighting and numerous other aesthetic, engineering and legal requirements.
The examination is administered by the office of Examination Services of the Department of Professional Regulation and is supplied to the state of Florida as well as to all other jurisdictions in the United States by the National Counsel of Architectural Registration Boards (NCARB) . Pursuant to the authority delineated below, this examination has been adopted for use by Florida applicants for licensure. The examination itself is so constituted as to require the applicant for licensure, the Petitioner, to design a structure for placement on a particular site, including mandatory requirements for accommodating the structure to the site, and vice versa, detailed design of elevations, building cross-sections, facades, and floor plans, as well as effective use of natural light and solar heating potential, regard for the physical and aesthetic needs of the building's occupants, its impact on the environment of the site and its locality and numerous other criteria.
Prior to sitting for the examination, each applicant, including the Petitioner, receives a pre-examination booklet setting forth the architectural program to be accomplished by the applicant and various requirements to which the Petitioner is expected to apply himself in order to receive a passing grade. Immediately prior to commencing the examination itself, the Petitioner received other information designed to enable him to more adequately design the structure requested and perform the necessary technical and architectural requirements of the problem. In general, the examination was designed to require the Petitioner to design a solution to the site plan and the building design problems submitted to him by NCARB. The pertinent portion of the examination thus allows the examination graders, and through them, the Florida Board of Architecture, to determine whether an applicant such as the Petitioner is able to coordinate the various structural design, technical, aesthetic, energy and legal requirements in order to resolve the design and site plan problem after having been tested on these same requirements in written form in the initial portion of the examination administered in December of each year.
The grading of the site and design portion of the examination was accomplished by submission of the Petitioner's work product to at least three architects selected by the various architectural registration boards of some twenty states. These graders are given training by the NCARB in order to standardize their conceptions of minimal competence required for achievement of a satisfactory grade on the examination. Each architect grader is then asked to review and score various solutions to the site and design problem submitted by applicants, including the Petitioner, on a blind grading basis. The grader has no knowledge of the name or state of origin of the applicant whose solution he is grading. The grader is instructed to take into consideration the various criteria set forth in Rule 21B-14.03, Florida Administrative Code, and the evaluation criteria set forth in the grading sheet. The graders are instructed to note areas of strength and of weakness in an applicant's solution with regard to the grading criteria and then determine, based on an overall conception of the solution submitted by the applicant, whether or not a passing grade is warranted. A passing grade is defined as a holistic grade of three or four as set forth in Rule 21B-14.04, Florida Administrative Code. The applicant must receive at least two passing grades from the three architect graders who independently grade his solution to the problem in order to pass the relevant portion of the exam.
The Petitioner herein received two "2's", which are failing grades and one "3", which is a passing grade. The Petitioner demonstrated an effort to comply with the instructions set forth in the examination, as well as the pre- examination booklet. He failed, however, to achieve sufficient clarity of presentation in several material areas such that the graders could make a clear determination that he understood and had complied with sufficient of the mandatory criteria to achieve passage of the examination. As established by Herbert Coons, Executive Director of the Florida Board of Architecture, and Glenn Paulsen, Professor of Architecture at the University of Michigan, both graders of the Petitioner's examination and the Respondent's expert witnesses, the Petitioner failed to supply sufficient information to permit a passing score to be awarded based upon the criteria required to be considered and complied with in the examination program and by the authority cited below.
The Petitioner's examination was deficient in a number of material respects. The Petitioner violated the setback requirements as to the side entrance of the building in question with the result that significant alterations of the off-site and publicly owned sidewalks and easements would be required in order to effect his design solution. It is not good architectural practice, when asked to design a structure, to use land which is not part of the land owned by the client requesting the design. The examination program also specifically required that the candidate either maximize the floor space in the building by eliminating some amenities or if determining to insert amenities such as atria, balconies, large interior spaces and so forth, that these be provided in such a way to make the structure a luxury-type office building. In effect, the owner's goals in this design problem sought either a functional building with maximum floor space or a luxury building with minimal floor space, but with significant cultural amenities. In his solution, the Petitioner did not meet either of those two goals, since he included minimal floor space and yet an insufficient number of luxury features required by the program as an alternative. Other significantly deficient areas in the Petitioner's examination solution included his failure to visually relate the building's design to adjacent buildings. That is, he ignored the instructions in the program requiring him to design a building in an area of historical significance with an appearance which is compatible with adjacent historical buildings; pictures of adjacent buildings being furnished in his examination booklet. The
Petitioner failed to allow adequate room in the mechanical equipment space for heating and air conditioning equipment, which the size and type building would require. Additionally Witness Coons established, by scaling the Petitioner's design solution, that the building was too large for the site on which it was to be constructed. Portions of it would encroach upon public property and violate local zoning ordinances. In a more serious vein, it was established that the building design did not contain an adequate allowance for structural support as to the various spans over the columns. The column spacing was appropriate, but the beams depicted are not of a sufficient size and type to safely support the structure and there is a danger that a building so constructed would collapse.
Additional deficiencies noted involved poor human traffic circulation in the third floor lobby area design, insufficient storage space included in the design for the third floor lecture room and inadequate provision for landscaping.
Other less significant deficiencies were noted including, as admitted by the Petitioner that the square footage on the upper floors was in error. In short, significant program requirements were not provided for or complied with by the Petitioner.
In view of the above determined deficiencies, the Petitioner failed to establish that his solution to the site and design problem posed by the examination reflects sufficient and appropriate consideration of the requirements and criteria he was instructed to address.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and parties to this proceeding pursuant to Section 120.57(1), Florida Statutes.
The passage of an examination to practice architecture in the state of Florida is mandated by Section 481.213(2), Florida Statutes, which states:
(2) The board shall certify for licen- sure any applicant who satisfies the re- quirements of Section 481.209 and 481.211.
The criteria to be evaluated in the examination, the content of the examination, the grading criteria to be used in considering the adequacy of an applicant's response to the content and requirements of the examination, as well as the criteria for determination of passing grades, are contained in Rules 21B-14.02, 21B-14.03 and 21B-14.04, Florida Administrative Code.
If an applicant fails a portion of the examination he is entitled to a grade review pursuant to Rule 21B-14.05, Florida Administrative Code, and, if the facts are disputed, a formal hearing pursuant to Section 120.57, Florida Statutes. This procedure is provided for in Section 455.217(2), Florida Statutes, which states:
...The Board shall make available an exam- ination review procedure for applicants.
Unless prohibited or limited by rules im- plementing security or access guidelines of national examinations, the applicant
is entitled to review his examination questions, answers, papers, grades, and grading key. An applicant may waive in writing the confidentiality of his exam- ination grades.
The examination in question and the grading criteria contained therein have been challenged in the past and have been upheld as a rational tool for determining the competency of architects to practice their profession in the United States. See Hankes vs. Fisher, 314 F. Supp. 101 (WD Mass. 1977), aff'd 91 S. Ct. 462, 400 US 985, 27 L.ED. 2d 436 (1972). See, also, Hamner vs. Florida Department of Professional Regulation, Board of Architecture, case number 81-967R (1981).
The action of an administrative agency when within the powers validly conferred upon it is, in the absence of proof to the contrary, presumed to be valid and correct. Hayes vs. Bowman, 91 So.2d 795 (Fla. 1957). All reasonable presumptions should be indulged in favor of the validity of the agency's actions. Varholy vs. Sweat, 15 So.2d 267 (Fla. 1953).
The Petitioner herein failed to carry the burden necessary to show that an error was made in the determination of his grade. Indeed the testimony clearly showed, and the Petitioner admitted, that he had failed to supply certain material information specifically required by the examination instructions supplied him prior to the examination. The failure by the Petitioner to supply the information required by the examination instructions, to give adequate regard to the design criteria and considerations required, and his solution to the examination problems, renders the conclusion inescapable that the determination by the examination graders, who testified at the hearing, that the Petitioner failed to adequately and successfully complete the site and design portion of the architectural examination should be upheld.
The Petitioner's presentation of his case, when viewed in its most favorable light, demonstrated that reasonable men might differ regarding the completeness of his examination and the adequacy of his response to the problems posed. This, however, is not sufficient to support a determination that an error has been made on the part of the Respondent in grading the Petitioner's examination. In State ex rel. I. H. Topp vs. Board of Electrical Examiners in Jacksonville Beach, 101 So.2d 583 (4th DCA 1958) the court stated:
It is clear from the evidence in the instant case that the Respondent Board, in the exer- cise of its lawful authority, determined that the relator failed to earn a passing grade on its examination. Admittedly there will be questions on examinations of this type for which the amount of credit to be given var- ious answers may differ in the minds of rea- sonable men. That such conditions exist is not alone sufficient cause upon which to bottom an alleged abusive discretion, partic-
ularly when as here the ultimate responsibility for assigning grades to such answers falls on those who have been duly elected or appointed to the Board and whose function it is to issue
a certificate of competency only after being satisfied as to the applicant's entitlement.
Under such circumstance the court will be extremely reluctant to substitute its judg- ment for that of the duly authorized Board; else the Board would be compelled through the judicial arm of mandamus to issue its certificate of competency not in its own discretion, but upon that of the court.
See, also, Steven Todaro vs. Department of Professional Regulation, State Board of Architecture, case number 80-1979 (1980) and John F. Binkley vs. Department of Professional Regulation, State Board of Architecture, case number 80-1981 (1981).
Accordingly, based upon the testimony of the Respondent's expert witnesses, as well as the admissions elicited from the Petitioner during cross- examination, it must be concluded that the Petitioner failed to sustain his burden of showing that an error occurred in the grading of his examination. The Petitioner's grade and the grading procedure by which it was arrived at, has been shown to be consistent with the evaluation criteria and standards set forth in the Rules of the Florida Board of Architecture as being necessary to passage of the site and design portion of the architectural examination.
Having considered the foregoing findings of fact and conclusions of law, the evidence in the record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore
That the failing grade conferred on the Petitioner on the June, 1981 site and design portion of the architectural examination be upheld and that the petition be DENIED.
DONE and ENTERED this 11th day of May, 1982 in Tallahassee, Leon County, Florida.
FILED with the Clerk of the Division of Administrative Hearings this 18th day of May, 1982.
Mr. Albert Poza
John J. Rimes, III, Esquire Department of Legal Affairs Suite 1601, The Capitol Tallahassee, Florida 32301
Samuel R. Shorstein, Secretary Department of Professional
Herbert Coons, Jr. Executive Director Board of Architecture
