Judges: WILLIAM B. THOMAS
Agency: Department of Business and Professional Regulation
Latest Update: Sep. 27, 1983
Summary: Petitioner failed to show the grading of his exam was arbitrary and capricious and against criteria normally used. Recommended Order: Petitioner's grade stands.
83-0440.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
AUGUSTUS A. PERNA, JR., )
)
Petitioner, )
)
vs. ) CASE NO. 83-440
)
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF LANDSCAPE ) ARCHITECTURE, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, WILLIAM B. THOMAS, held a formal hearing in this case on April 28, 1983, Miami, Florida. The transcript was received on August 15, 1983, and the parties were allowed 15 days thereafter to submit proposed findings of fact and conclusions of law. These were filed by counsel on behalf of the Respondent, and have been largely adopted. The Petitioner submitted a written closing statement in lieu of proposed findings and conclusions, but this consists of argument only, and contains no proposed findings to be either accepted or rejected.
APPEARANCES
For Petitioner: Augustus A. Perna, in pro per
6850 Southwest 40th Street Miami, Florida 33155
For Respondent: Drucilla E. Bell, Esquire
130 North Monroe Street Tallahassee, Florida 32301
The Petitioner took the June, 1982, examination for licensure as a landscape architect. He failed to receive a passing grade, and brings this proceeding to challenge the grade given to him, contending that he should have been given more points than he actually received.
The Petitioner testified in his own behalf and presented a licensed landscape architect who practices in Miami as his witness. The Respondent presented as its witness a member of the Board of Landscape Architecture who has served for three years as a consultant for evaluating and reevaluating examination score sheets. A total of 11 exhibits were offered and received in evidence.
FINDINGS OF FACT
The Petitioner was an applicant for licensure as a landscape architect in the State of Florida, and he took the licensure examination on June 14th and 15th, 1982.
The Petitioner passed one part of this examination, Landscape Architecture Design, with a score of 75, but he failed History of Landscape Architecture, Professional Practice, and Design Implementation.
The only part of the exam the Petitioner challenges is Design Implementation for which he received a final grade of 73. His initial Score was 69, but after a review and reevaluation of his designs by the consultant, points were added to his score which brought it up to 73.
A score of 75 is required in order to pass the examination.
The landscape architecture examination is a national examination, developed and administered by CLARB, Council of Landscape Architectural Registration Boards.
The Design Implementation section of the exam is approximately 50 percent of the examination, and is graded by a team of landscape architect experts who have been trained by CLARB in a one-day seminar regarding their responsibilities and evaluation standards. There is always a minimum of two evaluators for each examination.
Candidates are identified only by a candidate number, which maintains their anonymity.
CLARB utilizes a statistical process to measure the differences among evaluators to eliminate the very hard graders and the very easy ones.
In order to arrive at a raw score, CLARB collects all of the examination grades from the entire nation and determines a median score. This is utilized to calculate a coefficient for each individual state that determines the value of each point.
The Petitioner was graded on three separate drawings. These drawings were graded by the evaluators for the State of Florida and Petitioner was given a grade of 69.
The Petitioner reviewed his examination and made objections to the score given on drawings 1 and 2. These drawings and the Scores given were reviewed by the consultant. addition, the consultant reviewed each one of the scoring items on all three drawings to ensure proper grading
Professional judgment must be utilized in grading these examinations, because they are landscape architecture drawings; therefore, the evaluators are professional landscape architecture experts, as is the Department's consultant.
The Petitioner's drawings did not meet the Standards set by CLARB for minimal competency in the area of landscape architecture. For example, he did not place elevation figures in proper places, he failed to indicate grades where they were poised to be indicated, he did not show proper contours, and he did not clearly preserve all trees as required by the examination guidelines.
Certain grading criteria in the Design examination where cumulative, in that each level must have been completed before the next level could be attained. This resulted in low grades for the Petitioner on some of the criteria.
The Petitioner's drawings showed a lack of minimal competency, in that he was not clear and precise in the location of grades and contours, and left vague areas that could be misinterpreted by contractors or surveyors.
The Petitioner's testimony consisted largely in going over the parts of the drawings in question, and pointing out areas where he contended more credit should have been given. However, insufficient real evidence, as opposed to the opinion of the Petitioner, was presented to support a finding of fact that his examination score should be upgraded more than was already done. The Petitioner's expert witness had been the Petitioner's employer for two years and, although he supported the Petitioner's contentions that the score on his drawings should be upgraded, the Petitioner's expert had no prior experience in the grading of examinations. Thus, his conclusions were unpersuasive, and have not been found as facts.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.
Chapter 481, Part II, Florida Statutes, imposes State regulation upon the practice of landscape architecture for the purposes set forth in Section
481.301 of this Act.
Section 481.311, Florida Statutes, prescribes the qualifications for licensure as a landscape architect. Subsection (2) of this statute requires an applicant for a license to practice landscape architecture to pass an examination.
Section 455.217(1)(a) Florida Statutes, requires that the Department, in conjunction with the Division of Administrative Services, ensure that the examinations adequately and reliably measure an applicant's ability to practice the profession.
Subsection (b) of this statute provides that to the extent not otherwise specified by statute, the Board shall by rule specify the general areas of competency to be covered by each examination, the relative weight to be assigned in grading each area tested, and the score necessary to achieve a passing grade.
By Section 21K-11.01, Florida Administrative Code, the Board of Landscape Architecture approved the Uniform National Examination developed and administered by the Council of Landscape Architectural Registration Boards, and specified that the examination will be the examination administered by the Department of Professional Regulation for the purpose of licensing. Subsection
(2) of this rule specifies the general areas of competency to be covered, namely, History of Landscape Architecture, Professional Practice, Landscape Architectural Design, and Design Implementation. Subsection (3) of this rule specified that all subject areas are to be weighted equally in grading the examination, and that a score which represents minimal competency shall be determined by the Council of Landscape Architectural Registration Boards through
generally accepted testing procedures. A score of 75 percent is required to be achieved in each subject area in order to pass the examination.
Since this case involves the grading of a practical examination and the denial of licensure, the Petitioner must prove by a preponderance of the evidence that he actually passed the practical portion of the examination, thereby demonstrating his competency to practice landscape architecture in the State of Florida, and in addition, he must prove that the Respondent arbitrarily and capriciously failed to give him the grades he earned. State ex rel. Glasser
v. Pepper, 155 So.2d 383 (Fla. 1st DCA 1963).
Action of an administrative agency when within the power validly
conferred upon it is presumed to be valid and correct in the absence of proof to the contrary, and is given great weight. Hayes vs Bowman,
91 So.2d 795 (Fla. 1957) and San Souci vs. Division of Florida Land Sales and Condominiums, Department of Business Regulation, 421 So.2d 623 (Fla. 1st DCA 1982).
The Petitioner failed to show that the Department of Professional Regulation and the Board of Landscape Architecture did not act in accordance with the powers conferred upon these agencies by Chapters 455 and 481, Florida Statutes. The Board administered an examination which complied with the statutes and and rules, and it utilized experts in landscape architecture who were standardized by the Council of Landscape Architectural Registration Boards in grading a candidates drawings. The Board has also specified by rule the general areas of competency to be covered by each examination, the relative weight to be assigned in each area tested, and the score necessary to achieve a passing grade, pursuant to Chapter 455.217(1)(b), Florida Statutes.
The Petitioner failed to show any arbitrary or capricious conduct on the part of the Board or the Department. His main complaint regarding the grading of the examination was that he should have been given more points for certain criteria. The reevaluation done by the Department's consultant showed that the Petitioner was in a limited respect correct and his score was increased from a 69 to a 73. Since the ultimate grade given depends on professional judgment in the area of landscape architecture, the Petitioner has not sustained his burden of proof and the grade should remain as it was awarded.
RECOMMENDATION
Based upon the foregoing Findings of Fact and Conclusions of law, it is RECOMMENDED that the application of Augustus A. Perna, Jr., for licensure
as a landscape architect be denied, based on his failure to achieve a passing
grade on the June, 1982, examination.
THIS RECOMMENDED ORDER entered on this 27th day of September, 1983, in Tallahassee, Florida.
WILLIAM B. THOMAS
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 27 day of September, 1983.
COPIES FURNISHED:
Augustus A. Perna
6850 S. W. 40th Street Miami, Florida 33155
Drucilla E. Bell, Esquire
130 North Monroe Street Tallahassee, Florida 32301
Fred M. Roche, Secretary Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Mr. Herbert Coons, Jr. Executive Director Department of Professional
Regulation, Board of Landscape Architecture
130 North Monroe Street Tallahassee, Florida 32301
Docket for Case No: 83-000440
Orders for Case No: 83-000440
| Issue Date |
Document |
Summary |
|
Sep. 27, 1983 |
Recommended Order
|
Petitioner failed to show the grading of his exam was arbitrary and capricious and against criteria normally used. Recommended Order: Petitioner's grade stands.
|
