vs. ) CASE NO. 82-768
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, R. L. Caleen, Jr., held a formal hearing in this case on May 20, 1982, in Fort Lauderdale, Florida.
For Respondent: John J. Rimes III, Esquire
Whether petitioner, an applicant for licensure to practice architecture, is entitled to a passing grade on the design and site planning portion of the architecture examination administered in June, 1981.
On January 26, 1982, petitioner John Loeffler ("petitioner") requested a hearing on his alleged failure to pass the June, 1981, architecture examination administered by the respondent Department of Professional Regulation, Board of Architecture ("Department"). On March 16, 1982, the Department forwarded this case to the Division of Administrative Hearings for assignment of a hearing officer to conduct the requested hearing.
Hearing was therefore set for May 20, 1982. At hearing, petitioner testified on his own behalf. The Department called Herbert Coons, Jr., Executive Director of the Board of Architecture. Joint Exhibit Nos. 1-3 and Petitioner's Exhibit No. 1 were received into evidence.
The parties submitted proposed findings of fact and conclusions of law by June 3, 1982. No transcript of the hearing has been filed.
I.
Petitioner is an applicant for licensure, by examination, to practice architecture in Florida. The National Architectural Examination administered by the Department consists of two parts, a written examination given in December of each year, and a site planning and design test which is given in June. Petitioner met all requirements for admittance to the licensure examination.
Petitioner took the design and site planning portion of the examination in June, 1981. This portion of the examination consists of a twelve-hour sketch problem. Examinees are required to provide a site plan and building structure ("solution") in accordance with specific program requirements specified in the examination booklet.
Examinees are supplied a pre-examination booklet describing the sketch problem and the various requirements which must be met in order to receive a passing grade. At the time of the examination, additional information is supplied to the applicant to enable him to more adequately design the structure and perform the necessary technical analysis. In general, the examination is intended to provide applicants with an opportunity to demonstrate competence in the design process by requiring them to solve a specific architectural problem through graphic methods.
The grading of the site and design problem is accomplished by the independent review of the applicant's design solution by at least three architects. These graders receive pre-examination training in order to standardize their conceptions of the minimal competence required for a passing grade. All sketch solutions are evaluated on a blind grading basis; the graders do not know of the name or state of origin of the examinees. Graders are required to evaluate the solutions on a holistic basis--"the graders' overall impression . . . [on] how adequately and satisfactorily . . . [the examinee has] incorporated and responded to the conditions and requirements of the problem." (Joint Exhibit No. 2.) Each solution is graded on the basis of specific criteria: 1/
Site Planning and Site Design: This criteria will incorporate such elements as: conformance to zoning requirements; conformance to site restrictions; vehicular access to site; vehi- cular on-site circulation; parking location
and layout; pedestrian access to site; pedes- trian on-site circulation; equal access and circulation for handicapped; separation of pedestrian and vehicular circulation; site grading and surface drainage; site landscap- ing; building siting for orientation, views, energy efficiency; completeness and clarity of presentation.
Building Programming, Planning and Design: This criteria will include such elements as: conformance to building code requirements
(fire safety, egress, barrier free, lateral forces); relationships of activities and spaces; circulation patterns, horizontal
and vertical; conformance to programmed area requirements; connection to adjacent struc- ture(s); appropriateness (e.g., size, shape, height, fenestration) of spaces for intended use; proportion and design of spaces for required furnishings and equipment; rela- tion of building to site conditions and characteristics; energy-conscious design (e.g., building configuration, orientation, fenestration, shading devices, passive solar) architecture of the building in relation to the surrounding neighborhood and buildings; completeness and clarity of presentation.
Technical Aspects: This criteria will include such elements as: choice of mate- rials and methods of construction; struc- tural system concept; mechanical systems concept; lighting and acoustical concepts; completeness and clarity of presentation.
(Joint Exhibit No, 2, Pre-examination Information Booklet, pp. 5-6.)
Graders are instructed that examinees are "entitled to make some mistakes;" that the program analysis and design sketch must be done by examinees hurriedly, in a tense situation, without access to standard reference materials, without customary time for deliberation and critique by others; and that, consequently, the examinee must "always be given the benefit of the doubt." (Joint Exhibit No. 2, Grader's Manual, p. 6.) In evaluating the solutions, graders are told to keep these questions in mind:
If the examinee knew more about the particular project, would I say this per- son could design?
If the examinee had time to polish the solution, would I say that this person could design?
Is the solution presented by the exam- inee buildable?
Are the flaws in the solution so minor that small changes could be made without destroying the concept?
(Joint Exhibit No. 2, Grader's Manual, p. 7.) Graders are also reminded that they must not judge a solution against an imaginary ideal solution.
Graders are required to use a scoring scale ranging from 4 (the highest) to 1 (the lowest). A solution in the 3-4 category is minimally acceptable or above--i.e., passing; a solution in the 1-2 category is less than minimally acceptable--i.e., failing. By not having a middle score, graders are forced away from a middle or uncommitted score. Since each solution is
separately graded by three persons, the overall pass-or-fail status is determined by the majority of the scores in the pass-or-fail category.
If scores of 1 or 2 are awarded, graders are required to indicate the examinee's weaknesses in the box opposite the appropriate subcriteria on the Evaluation Sheet. Indications of weakness "must not be arbitrary." (Joint Exhibit No. 2, Grader's Manual, p. 5.)
Solutions which do not give a clear overall impression to the graders are termed "borderline cases." In such cases, examiners are told that "a deciding evaluation will be made by a member of the National Council of Architectural Registration Board's Coordinating Committee who will not know the grades given by the firsts three evaluators." (Joint Exhibit No. 2, Grader's Manual, p. 4.)
II.
Petitioner received two 2's and one 3 on his sketch solution to the site planning and design test. Since two of the three grades were below minimally acceptable standards, the Department notified him that he had failed the examination. Petitioner contests the validity of the alleged deficiencies, or weaknesses, indicated by the two graders who gave him failing grades. These alleged deficiencies or weaknesses are the basis for the Department's determination that petitioner failed the examination. Each is addressed separately below.
Surface Drainage.
One grader indicated this as an area of weakness while the other did not. No general or specific requirements for surface drainage were contained in the problem. (Joint Exhibit No. 2, Examination Information Booklet.) The site was given as a tract of land 150 feet by 64 feet sloping from west to east. Petitioner's solution showed spot elevations relative to walkway grades at all points of entry to the building, and indicated parking area drainage flow. At hearing, the Department did not demonstrate how petitioner's treatment of surface drainage was inadequate or failed to respond to the requirements of the problem.
Landscaping and Site Lighting.
One grader indicated this as an area of weakness while the other did not. The problem required examinees to place a 20-foot public pedestrian walkway with "new landscaping, paving patterns and lighting." (Joint Exhibit No. 2, Examination Booklet, p. 7.) Petitioner's solution clearly showed landscaping and paving patterns and lighting in the walkway area. At hearing, the Department failed to show how his solution failed to adequately respond to the requirement of the problem. Instead, its expert witness was satisfied with petitioner's treatment of this subject.
Conformance to Program Area Requirements.
One grader indicated this as an area of weakness, the other did not. The problem specified area requirements for the various portions of the project. (Joint Exhibit No. 2, Examination Booklet, pp. 6-11.) The project scope provided:
The developer's economic goal is to maxi- mize his investment either by fully utiliz- ing the maximum available square footage of 32,768 to be rented at competitive rates; or to develop a building of less square footage with amenities such as atriums, multi-floor openings, balconies, terraces, etc. to be rented at premium rates. A min- imum of 21,000 sq. ft. of floor area must be developed in order to make the project feasible. (e.s.)
(Joint Exhibit No. 2, Examination Booklet, p. 1.) The Department's witness testified that petitioner's solution did not maximize the square footage allowed by the problem. Petitioner, however, chose to design a building of less than the maximum square footage with amenities, such as a multi-floor light well. If such a light well is not a "multi-floor opening," it surely falls within the definition of "amenity," a feature which adds attractiveness and value.
Petitioner thus made a choice expressly provided by the problem. The Department failed to show how petitioner's solution failed to satisfy the area requirements specified by the problem.
Conformance to Building Code Requirements. (Fire protection, handicapped, etc.)
One grader indicated this as an area of weakness, the other did not. The problem specified these requirements:
CODE STANDARDS
The basic aspects for the protection of life, health, safety, welfare and for minimizing property damage must be incorporated in your solution. The project must be planned for barrier free access.
FIRE RATING
The building shall have the following mini- mum fire ratings:
1-hour - between floors
4-hours - stairs, elevator tower, mechanical chases, exterior walls within 5' of side property line.
The east and west exterior walls do not require rating, but must be of non- combustible construction.
Sprinklers - required throughout the building.
Indicate the materials to be used to achieve the required fire ratings. (e.s.)
(Joint Exhibit No. 2, Examination Booklet, p. 5.) The Department failed to show how petitioner's solution failed to satisfy the Code Standards requirement.
However, petitioner did not adequately respond to and comply with the requirement that he indicate the materials used to achieve the required fire ratings. His solution omitted such information.
Lobby Operation. (Security, art work, information, etc.)
Both graders indicated weakness in this area. The problem specified a ground floor gross area of 4,608 square feet, a maximum of 1,608 square feet in the lobby, a building identification on the west elevation, display area for art work, and a station for a watchman "to oversee the entrances and act as a building information source." (e.s.) (Joint Exhibit No. 2, Examination Booklet,
p. 6.) Petitioner's solution satisfies these specific requirements. The Department's only criticism is that a watchman at the station provided by petitioner cannot oversee elevator waiting areas. While such observation of the elevator area might be useful, it was not a program requirement and petitioner cannot be fairly faulted for not providing such oversight.
Structural System Concept, Logic, and Appropriateness.
One grader identified this as an area of weakness, the other did not. This is the most significant deficiency in petitioner's solution. He placed the core on the south side of the office building, thereby depriving rentable office space on the third floor of window access. 2/ Furthermore, while the light well provides sunlight, two-thirds of the well is blacked by office walls. The design of the structure is thus deficient in logic and appropriateness. (Testimony of Coons.)
Completeness and Clarity of Presentation.
One grader indicated this was a weakness, the other did not. Petitioner's solution lacks detail on the nature of the insulation, roof, and windows used in the structure.
The Department concedes that this is a borderline case, that petitioner's solution is extremely close to the standard required for minimal competency. 3/
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. 120.57(1), Fla. Stat. (1981).
The Department is authorized to require persons, such as petitioner, to pass an examination as a condition precedent to licensure as a registered architect in Florida. 481.209, 481.213, Fla. Stat. (1981).
In licensing proceedings, it is incumbent upon the applicant to establish his entitlement to the license. When, as here, an agency states particular grounds for its action, the applicant must show that the stated grounds are invalid. See, Department of Transportation v. J.W.C. Company, Inc.,
396 So.2d 778 (Fla. 1st DCA 1981). The standard of proof is a preponderance of the evidence. Fitzpatrick v. City of Miami Beach, 328 So.2d 578 (Fla. 3d DCA 1976).
There is, however, no presumption of correctness in favor of the agency's action. Hearings under Section 120.57(1) are de novo proceedings, their purpose being to formulate agency action, not to review action taken earlier or preliminarily. See, J.W.C. Company, supra. The Department's reliance on State ex rel. I.H. Topp v. Board of Electrical Examiners of Jacksonville Beach, 101 So.2d 583 (Fla. 1st DCA Fla. 1958), is misplaced. That
case pre-dated the 1974 Administrative Procedure Act and dealt with the proper role of the courts in reviewing agency action. It has no application to the de novo "formulation" of agency action through formal Section 120.57(1) proceedings.
Measured by these standards, petitioner has failed to sustain his burden of proof, i.e., to show, by a preponderance of evidence, that the Department's stated grounds for failing his examination are invalid. While some were shown to be invalid, others were not. Moreover, he did not present testimony sufficient to offset or rebut the Department's expert testimony that the proven deficiencies (omission of required information and detail and inappropriateness of design of structure) were serious enough to justify the awarding of a failing grade.
The parties' proposed findings of fact are adopted to the extent they are incorporated in this recommended order. Otherwise, they are rejected as unsupported by the necessary quantum of evidence or unnecessary to resolution of the issues presented.
That the Department enter an order determining that petitioner failed the design and site planning portion of the National Architectural Examination administered in June, 1981.
DONE AND RECOMMENDED this 30th day of July, 1982, in Tallahassee, Florida.
R. L. CALEEN, JR. Hearing Officer
FILED with the Clerk of the Division of Administrative Hearings this 30th day of July, 1982.
1/ These criteria are, for the most part, also listed in Rule 21B-14.03, Florida Administrative Code.
2/ Petitioner opted to design a structure which must be able to be rented at premium rates. Normally, windowless offices do not rent at premium rates.
3/ This prompted the Department to refer petitioner's solution to a fourth grader, who also found petitioner's solution to be unacceptable. It is unclear whether the fourth grader was, as required, a member of the National Council of
Architectural Registration Board's Coordinating Committee. See, paragraph 8, supra.
John J. Rimes III, Esquire Department of Legal Affairs Suite 1601, The Capitol Tallahassee, Florida 32301
Herbert Coons, Jr. Executive Director Board of Architecture
Samuel R. Shorstein, Secretary Department of Professional Regulation
