STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HOWARD FREEMAN, )

)

Petitioner, )

)

vs. ) CASE NO. 88-0904

) DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF )

ARCHITECTURE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Veronica E. Donnelly, held a formal hearing on May 10, 1988, in Fort Myers, Florida.

APPEARANCES

For Petitioner: Howard Freeman, Pro se

Post Office Box 212

St. James City, Florida 33956

For Respondent: John J. Rimes, III, Esquire

Department of Legal Affairs The Capitol

Tallahassee, Florida 32301

By letter dated December 5, 1987, the Petitioner requested a hearing to contest the failing grade he received on Division C, the building design portion of the Architecture Examination of June 1987, which was taken to qualify for licensure as an architect.

During the hearing, the Petitioner submitted eight exhibits and testified in his own behalf. The Respondent submitted three exhibits and presented one witness. All of the exhibits were accepted into evidence.

A transcript of the proceedings was not ordered. The Petitioner submitted a written closing argument, which was read by the Hearing Officer. Proposed Findings of Fact and Conclusions of Law were not submitted by either party.

FINDINGS OF FACT

1. In order for the Petitioner to obtain his license to practice architecture in Florida, he is required to successfully complete a written examination prepared by the National Council of Architectural Registration Boards (NCARB) and administered by the Department of Professional Regulation.

2. The Petitioner has obtained a passing score on eight of the nine divisions of the examination. He received a failing grade on Division C, the building design portion of the Architecture Examination taken in June of 1987. Because of the one failing grade, Petitioner is deemed to have failed the entire examination until all portions are successfully completed.

   
   

3. The Petitioner's failing grade on Division C was determined under the following process:

   
   

   Two examiners independently evaluated the Petitioner's solution to the building design problem using the holistic grading method. The Petitioner obtained a score of 2 from one grader and a grade of 2 from the other grader. The exam received a third evaluation in which the Petitioner was given a score of 3. The first two scores were a failing grade. The third score was a passing grade.

   
   

   Under the NCARB evaluation process, the test was then given to a master juror to grade to determine what grade should be given to the examination. A master juror is an examiner with over four years of experience in grading the building design portion of the examination. When a master juror is given an exam to grade, he is aware that he is being called upon to resolve a grade conflict case. In this case, the master juror gave Petitioner's design a holistic score of 2. As a result, the Petitioner failed the exam. The failing score was reported to the Respondent, who adopted the score and notified the Petitioner that he had to retake the examination.

   
   

4. The Respondent did not follow prescribed procedures set forth in the Florida Administrative Code as to how a passing grade is defined on Division C of the Architecture Examination of 1987.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter pursuant to Section 120.57(1) and Section 120.60, Florida Statutes.

   
   

6. The written examination far licensure as an architect, Division C is graded according to the criteria set forth in Rule 21B-14.003(2)(b), Florida Administrative Code.

   
   

7. Whether an applicant has received a passing grade on Division C of the exam is controlled by Rule 21B-14.004(2), Florida Administrative Code.

   
   

8. In this case, the applicant received a 2/2 on the first two gradings of the exam. Under Rule 21B-14.004(2), he was entitled to receive a third grading. In the third, evaluation, the Petitioner received a grade of 3. In this situation, Rule 32B-14.004 unequivocally states:

   
   

   Those candidates receiving a ... 2/2 ... will receive a third grading. If the third

   grading is a 1 or 2, the candidate fails with two failing grades. If the third grading is a 3 or better, the candidate passes. (emphasis added)

   
   

9. If the Respondent wishes to adopt the NCARB evaluation procedures for determining whether an applicant has passed or failed the Division C portion of

the examination, it may do so under proper rulemaking procedures. However, the grading of the Petitioner's examination is controlled by the Florida rules in effect when the examination was graded.

Based upon the foregoing, it is RECOMMENDED:

1. That a Final Order be entered finding that the Petitioner achieved a passing grade on Division C, the building design portion of the Architecture Examination taken in June of 1987.

   
   

2. As a result of the passing score the Petitioner's overall exam status should be changed from "fail" to "pass."

DONE AND ENTERED this 10th day of June, 1988, at Tallahassee, Florida.

VERONICA E. DONNELLY, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 1988.

COPIES FURNISHED:

John J. Rimes, III, Esquire Department of Legal Affairs The Capitol

Tallahassee, Florida 32301

Howard Freeman

Post Office Box 212

St. James City, Florida 33956

Pat Ard, Executive Director Board of Architecture Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

William O'Neil, General Counsel Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF ARCHITECTURE

HOWARD FREEMAN,

Petitioner,

1. DOAH CASE NO. 88-0904

   
   

   DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF ARCHITECTURE,

   
   

   Respondent.

   /

   
   

   FINAL ORDER

   
   

   THIS CAUSE came on to be heard before the Florida Board of Architecture at a regularly scheduled meeting held in Ft. Lauderdale, Florida on September 29, 1988, pursuant to the Recommended Order entered in this cause by the Hearing Officer, Veronica E. Donnelly on June 13, 1988, and a Motion to Vacate said order and to Dismiss this cause as moot (the Motion to Vacate having been previously denied by the Hearing Officer on July 20, 1988, as being outside her jurisdiction, but being properly before the Board at this time and the Motion to Dismiss on Grounds of Mootness being raised ore tenus at the hearing itself).

   Pursuant to the motions filed in this cause, the Board hereby makes these findings and enters the same as its Final Order.

   
   

   1. The Motion to Vacate filed by Respondent in this cause on June 21, 1988 and denied by the hearing officer as outside her jurisdiction on July 20, 1988, is hereby granted. The Motion to Vacate is taken as a Motion to Remand insofar as the Hearing Officer inadvertently entered a Recommended Order in this cause prior to obtaining the transcript as requested by the parties at the hearing and as such prior to receiving Proposed Findings of Fact and Conclusions of Law within 10 days of receipt of the transcript as stipulated by the parties at the hearing. As such therefore, pursuant to the rules of the Division of Administrative Hearings, as set forth in the attachments to the original Motion to Vacate filed by Respondent, the Recommended Order in this cause was erroneously entered, insofar as Respondent had no opportunity to file its proposed findings of fact and conclusions of law as is clearly permitted before the entry of a Recommended Order as provided both by Chapter 120 and the rules of the Division of Administrative Hearings. The Recommended Order entered in this cause on June 13, 1988, is this hereby vacated as being improvidently entered and this cause would normally be remanded to the Hearing Officer for an entry of appropriate Recommended Order following submittal of the transcript and the proposed findings of fact and conclusions of law of both parties; however, for the reasons set forth below, said action is not taken by the Board.

   2. Subsequent to the activities set forth above involving the improvidently entered Recommended Order, the Petitioner took and passed Part C of the Architecture Registration Examination in June 1988. Since the issue at hand in the hearing held in this cause on May 10, 1988, was whether or not that portion of the examination had been passed in 1987, it is clear that the passage of said portion of the examination in the 1988 examination renders any relief which the Hearing Officer on the Board could grant meaningless and requires that this cause be dismissed as moot. As is noted above, the sole issue before the Hearing Officer at the May 10, 1988 hearing, was whether or not Part C of the 1987 examination should have been scored a pass, instead of a fail, and since that issue has now been put to rest as a result of Petitioner's having passed the 1988 examination as to the same part at issue in the 1987 examination, there is no need for further proceedings below. The Board however, deems it is appropriate to attach as dicta to this order, proposed findings of fact 4 and 5, which would have been filed by Respondent, and which addressed, the grounds upon which the hearing officer's originally entered order found that Petitioner should have passed the 1987 examination. This is done in light of the fact that this Final Order will appear in the appropriate Administrative Law Reporter, in addition to the Vacated Recommended Order of the hearing officer. Since the Recommended Order of the Hearing Officer was flawed as a matter of law in determining without the complete record that the Board had failed to follow its own rules add also apparently entertained a presumption that where no evidence is entered by either party, is to whether or not a rule of the Board has been followed, that the presumption would be that the rule had not been followed as opposed to the presumption being that it was followed. While the Board is unclear as to whether or not the Hearing Officer intended this result, it is apparent from her order and from the evidence, including the transcript of the hearing, that her finding that the Board and the testing agency failed to follow the rules of the Board as set forth in Rule 21B-14 was not supported by competent substantial evidence. The Board deems it appropriate to set forth, what would have been its findings of fact, had this cause not been mooted as a result of Petitioner's performance on the 1988 examination. The attachments of paragraphs 4 and 5 of Respondent's Proposed Findings of Fact in this cause is appended to this order only as dicta, and to make it clear to any reader that the Board does not in any way approve of the findings of the Hearing Officer set forth in her Recommended Order vacated herein.

Where it is hereby ordered and adjudged that the Recommended Order entered on June 13, 1988, is hereby VACATED and this case is hereby dismissed as being moot.

DONE AND ORDERED this 17th day of October, 1988.

CARL GERKEN, CHAIRMAN BOARD OF ARCHITECTURE

COPIES FURNISHED:

Howard Freeman

Veronica E. Donnelly, Hearing Officer

John J. Rimes, III, Assistant Attorney General

Docket for Case No: 88-000904

Orders for Case No: 88-000904