THOMAS W. HODDINOTT, )
vs. ) CASE NO. 90-2096
Respondent. )
A hearing was held in this case in Tampa, Florida on June 21, 1990, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.
For Petitioner: Keith F. Roberts, Esquire
For Respondent: Robert B. Jurand, Esquire
The issue for consideration herein is whether the Petitioner was properly graded on the UNE examination for certification in the field of landscape architecture given in Florida in June, 1989.
By grade report dated September 28, 1989, Petitioner, Thomas W. Hoddinott, was notified that he had failed to achieve a passing score of 75 on Section 1, 3, 4, and 5 of the landscape architect examination given in June, 1989 in Florida. Thereafter, on January 22, 1990, an amended grade notification was sent to Petitioner by which he was notified he had been awarded an additional 1 point in Section 6 of the examination, which he had already passed with a score of 75. None of the scores he received on Sections 1, 3, 4, or 5, which Petitioner had failed, were changed. Thereafter, on March 30, 1990, through counsel, Petitioner filed a Petition requesting alteration and correction of his grade
report and, by letter dated April 3, 1990, the matter was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer. After Initial Order and Response thereto from Respondent only, by Notice of Hearing dated April 13, 1990, the undersigned set the case for hearing in Tampa on June 21, 1990, at which time the case was held as scheduled.
At the hearing, Petitioner testified in his own behalf. Respondent presented the testimony of Fae E. Hartsfield, an examination development specialist with the Department of Professional Regulation, (Department), and Charles M. Oliver, a landscape architect and expert in that field and in the examination and grading process of the landscape architecture examination. The parties agreed to the introduction of Joint Exhibits A through E, which were received into evidence.
No transcript was provided and neither party submitted Proposed Findings of Fact. Respondent's counsel submitted argument which was carefully considered in the analysis of the facts herein and the preparation of this Recommended Order.
At all times pertinent to the issues herein, the Petitioner, Thomas W. Hoddinott, was a candidate for examination and licensure as a landscape architect in the state of Florida. The Board of Landscape Architects, is the state agency responsible for the licensure and regulation of the profession of landscape architecture in Florida.
Petitioner took the Florida landscape architecture examination administered in June, 1989. When the examination scores were announced, it was determined that of the five sections involved, on all of which a minimum score of 75 was required to pass, Petitioner earned a passing score of 75 on Section 6, the "Florida Section", but failed the other four sections. He received a score of 65 on Section 1, "Professional Practice"; 65.9 on Section 3, "Design application"; 61.1 on Section 4, "Design Implementation"; and 60.5 on Section 5, "Grading and Drainage." Petitioner requested a reevaluation of his scores and by amended grade notification dated January 22, 1990, was advised his score of 75 on Section 6 had been raised to 76.2, but his failing grades on the other four sections had not been changed. Thereafter, Petitioner filed a Petition for formal hearing herein claiming that in the case of Sections 3 and 4, both dealing with design, he should have been awarded extra credit sufficient to change his grade from fail to pass. At hearing, Petitioner announced his challenge would be limited to the two major designs called for in questions 3A and 3B, and there would be no challenge to Section 4.
The grading procedure for the landscape architecture examination, a national examination, (Uniform National Examination - UNE), is composed of five sections on which multiple choice questions and drawings are required. For a specific performance area, that in which the candidate is required to complete the design of a specific project consistent with the particulars outlined in the problem, an evaluation guide outlines the problem concerning which the examination is being given, and sets out the criteria by which the candidates solution is to be evaluated. The standards applied are national standards and candidates are held to the same elements nationwide. These standards are set by master graders from each state who meet collegiately to set the pertinent standards.
Section 3 of the June 9, 1989 examination was a multiple choice test accompanied by two required drawings, 3A and 3B. The candidate was required, in order to achieve a successful passing grade, to pass all three parts. The scores on each of the three parts are added together and must total a raw score of 94 (adjusted to 75) in order to pass.
Mr. Oliver was the master grader on the June, 1989 examination and was given the required standardization training for that duty. He also attended a training session for question 3A in Georgia as a master grader. Whereas question 3B is graded only by Florida graders, the other portion could be graded by either Florida or Georgia graders. During the grading process, the examiners were split into two groups headed by a master grader. They were then standardized as to how to grade the examination and what to look for. They were also advised of the permissible tolerances to be applied and other like factors. When the examinations were graded, they were forwarded to the Department. If any challenges were received, the challenged question was sent to another master grader who, with only Florida examiners, regraded the examination sheets and reevaluated the challenges.
The original grading on the June, 1989 examination was done in Savannah, Georgia, immediately after the examination by examiners from Florida and Georgia together. Each examination was graded by several graders and the graders were asked to grade the same area twice in an effort to insure reliability and consistency among the grades. All candidates are offered an opportunity to come to Tallahassee to write their objections to questions on which they failed to receive a passing score, and those questions were regraded in light of the objections. In the instant case, as it relates to question 3A, examiners found a strong correlation between Petitioner's original score and the score on regrade. Though there were two differences in the sub-scores awarded, the score remained the same. As to question 3B, as a result of the regrading, Petitioner was awarded 1 additional point.
With regard to Question 3A, Petitioner disputes the score he was awarded concerning certain sections of that question. The instructions and problem statement reads:
The Department of Transportation of a large city) (population 500,000), is planning a new five mile parkway in a 180 foot right-of-way with occasional parcels designated parkway plazas. The prime consultant, a large transportation planning firm, has engaged you to do the site design for a series of parkway plazas along the right-of-way. This problem is one of these plazas. You are to prepare a site analysis that identifies the influence of existing off- site and on-site conditions on the site plan; a concept diagram and concept statement that illustrate the functional relationships and site organizations of the required program elements; and a site plan that identifies and renders the program elements and design features.
After the instructions were outlined, a site description was provided; objectives for the project were outlined, both in general and specifically; and specific program elements and design features were outlined which were to be included in the plan designed by the candidate. The evaluation guide for this question listed 16 separate areas, many of which were broken down into sub- elements. For each of the 16 major areas, points were awarded based on the number of the sub-elements included and accepted in the candidate's solution. For example, area question 1 dealt with site inventory and analysis factors, and included the site inventory elements were such factors as:
-Heavy traffic on the Century City Parkway
-Bus routes on the parkway
-Noise from the parkway
-Residential neighborhoods on the northwest and east of the park
-Existing park
-Continuation of the bike path through the plaza
-Bike lanes on Country Club Road
-Major intersection
-Site visibility-triangle location noted
-Bus pull-off
-Opposite-side bus pull-off
-Railroad switching yard and/or 8' screen wall noted
-Existing tree planting
-Seasonal or prevailing wind, harsh or mitigating winds
-Temperature ranges
-Topography
-Soils
-Views
-Utility corridor
-Drainage
-Other relevant site inventory elements (count each)
These factors were to be considered in light of their use of the program elements and design features which define those particular characteristics which must be included in the candidate's individual design. The program elements were described as, for example:
Pedestrian Sitting Area:
This part of the site should be at least 8,000 square feet of paved area. It should offer a good view of all plaza activity, the sculpture and the parkway traffic. Seating arrangement should encourage communication and socializing.
The design features for this particular program element were:
64 LF of benches with backs
100 SF of seat wall or slab benches
Some of the trees in grated pavement cuts
At least 50% of the area is to be specialty paving
Bollards for traffic separation
Other program elements in this problem included Bike Node; Bus Stops: Crosswalks; Urban Sculpture; Sound Attenuation Wall; Linkage to the Existing Park; and Planting. Each of these program elements also have design feature criteria related which were to be considered and utilized by the candidate in his or her design.
The degree of successful compliance with the stated program elements and the design features determined the number of points awarded for the candidate's solution. For example, with regard to the elements described in paragraph 7, supra, if the candidate complied with fewer than 10 elements, he or she was awarded 0 points; for 10 elements noted, 1 point; for 12 elements noted,
2 points; for 14 elements noted, 3 points; for 16 or more elements noted, 4 Points.
Petitioner received a score of 0- on his answer to question 3A. He claims this was inappropriate because the pedestrian sitting area of 8,000 square feet is found on the answer sheet as is the bike node. The bus stop called for is identified as a bus node; required crosswalks are indicated; the urban sculpture is identified and sited; and the required linkage is provided by the crosswalks through the bike node. The sound attenuation wall is, admittedly, not identified. Petitioner admits he did not treat the issue of planting there because he did not think it was included, but based on his analysis of his answer, he believes he included 7 of the 9 required sub- elements, which, he feels, should give him three points.
According to Mr. Oliver, a self-employed landscape architect who is also an adjunct professor in the graduate program of landscape architecture at Florida International University and a master grader for the Board of Landscape Architects, the award of 0 points to Petitioner here was appropriate because, while Petitioner may have put some of his elements in box A, the test required that this area be demonstrated in box B. Under the terms of the examination, the elements had to be shown as labeled and "proportionately sized" within an approximately 10% margin. While the 8,000 square feet of pedestrian seating area were indicated, Petitioner was not given credit for the bike node because its size exceeded the 10% allowance. The bus node also was more than 10% bigger than that which was called for, and it was not properly labeled, being called a "node" instead of a "stop." The crosswalks were not labeled as such, and the snack shop was not connected to the existing park. Petitioner was given no credit for planting, but was given credit for including the urban sculpture. Taken together, Petitioner received credit for only two of the required sub- elements, and since his total approval was less than 10, he was awarded a score of 0. This appears to be appropriate.
Examinations such as the one in issue here are designed to test minimum competence under the fairest conditions. Examination criteria, as defined in the program elements, are the only factors considered. In the instant case, the concept diagram portion should be precise as to sizes, since
sizes deal with proportion and, therefore, have to be approximately in proportion. For example, a 2,500 square foot unit cannot be shown on the plan the same size as an 8,000 square foot unit. Petitioner claims that the size of the diagram provided to him limited labeling and proportions with clarity and readability. The important thing is, in his estimation, that the diagram and plan be readable by the client, and this could not be done if actual proportions were used. In this contention, Petitioner is correct, but, according to Mr.
Oliver, the Board recognizes this and permits the candidate to draw the unit out of proportion if it is labeled as being proportioned, and the candidate's notes reflect that. This, Petitioner did not do.
With regard to the question of linkage, Mr. Oliver admits the question is poorly worded on this examination, but claims it should be taken as meaning linkage to the existing park to the north. Since there is an ambiguity here, and that ambiguity could well have created a problem for the Petitioner, he should get credit for that particular sub-element. Even including that, however, his score for this question would be three elements rather than two, which is still below ten, and would not justify an award of more than 0 points.
Turning to factor 7, Petitioner claims that the bus stop, bike node, and pedestrian seating area are shown on Section C, (site plan), and all are separate but related. He feels the overall design shows a repetition of trees in back and in front, which helps to unify the site with the previously existing trees, and ties the site together. His design shows the urban sculpture and the sound attenuation wall is softened by the use of planting. The snack shop, he claims, is linked, as required, and the crosswalks are shown by the use of specialty pavers. He also provides for pedestrian safety by the use of a pedestrian waiting area in the median. His use of an open grassed area to the north of the park indicates his effort to create open space as a positive extra design feature.
In this factor, the possible scores range from 0 for no elements considered to a 5 for five elements considered. Here, Petitioner was awarded a 4 for recognizing four elements, and he claims he should have been awarded a 5 since, in his estimation, he considered five elements. The question calls for consideration of seven elements. Petitioner was originally given credit for elements 1, 3, 4, and 5, but in the opinion of Mr. Oliver, he should not get credit for number 2, overall design, since there is no repeated size and shape and no sense of order to the environment. As to element 6, though the crosswalks are shown, safety is lacking. The crosswalk on the parkway goes to an island and then continues, and this is not good. Also, the East-West crosswalk is concurrent with the bike path. The design criteria for this problem called for safety of handicapped, and joint use creates a safety problem for this category of person. The bikes should be kept separate from the pedestrians. With regard to element 7, additional design features, none were included by the Petitioner. He did not add any additional features such as signs or lighting. Had he done so, he would have gotten credit, but open space, which Petitioner claims as an additional feature, is not considered significant. Taken together, the award of 4 appears appropriate.
With regard to that factor described as "ordered and unified environment", this is a judgement call appropriately left to examiners with experience to make, even in the light of the minimum competence criterion. Open space, which Petitioner claims as an additional factor meriting extra credit, may enhance a design if it is, in fact, a design intent and not merely a left over. It appears here that the Petitioner had area left over, but since, in the opinion of Mr. Oliver, another grader might consider this open space as an
additional factor, Petitioner should be given the benefit of the doubt and awarded credit. Therefore, he should receive one additional point, resulting in a score of 5 for this factor.
Petitioner's design of factor 8, dealing with the bike node resulted in an award of 4 points, nine elements considered. He claims that the drinking fountain as called for in the third element was provided. It is located in the center area, however, rather than at the bike shop. His rationale was that it would be duplicative to provide a drinking fountain at the shop when water was already available there. He also claims that with regard to element 8, 64 linear feet of bench was provided and is located near the snack shop. In his opinion, this exceeds the amount required. Mr. Oliver, on the other hand, claims Petitioner's design solution was unusual. The program statement clearly defines the required elements, and number 2 is a bike node "to include a drinking fountain." Petitioner has provided two bike areas. The linkage to the snack shop also calls for a drinking fountain. Therefore, when Petitioner put his fountain at the small bike node rather than at the larger bike node in conjunction with the drench shower and other items, he did not conform to the dictates of the program statement. Had he put a second fountain in, providing one at each place, he would have gotten full credit. With regard to the benches with backs, the program element clearly shows benches with backs should be in the major park area and the ones utilized by the Petitioner are not properly labeled. Consequently, he should get no additional credit. It is so found.
Factor 10 deals with the functional relationships and operational considerations of the pedestrian sitting area and the sculpture location. Petitioner contests the failure to give him credit for the third of the elements involved, dealing with 100 square feet of seat wall or slab bench. He contends that his design provides the required seating by providing a terraced wall. The benches are labeled, and the wall provides the back, he claims. Here, he was given credit for four elements and was awarded 2 points. If he were to get credit for the additional element contested, his score would be raised to 3 points. Mr. Oliver, however, disagrees with Petitioner's position, and claims Petitioner has a label which says "seat wall benches" but his design shows no way of differentiating between the 64 linear feet of backed benches and the 100 square feet of slab wall bench. Therefore, according to Oliver, Petitioner can get credit for one, but not both. Petitioner did not give definitives for the size of the benches. Though the linear measurement is provided, the depth is not and it is, therefore, impossible to arrive at a square foot figure so as to determine whether Petitioner's design meets the requirements.
Petitioner disagrees, differentiating between "benches" and "seat wall benches." The former, he claims, when scaled, shows 64 linear feet. The latter, when scaled, would appear to provide more than the required 100 square feet, but, according to Mr. Oliver, "benches" are depicted on only two sides of two planters which measures out to 40 linear feet, and, in addition, these "benches" do not show, "with back." The additional area near the sculpture, while looking like a bench is not so labeled, and the examination grade cannot be based on supposition. The candidate must label his item or put a notation on his drawing which defines the nature of the various elements. Here, therefore, it is clear that Petitioner's depiction is not sufficient to justify additional credit beyond that which was awarded.
Factor 11 deals with environmental factors. On grading, Petitioner was awarded 1 point for four elements considered. He was denied credit for elements 1, 2, 3, 5, 6, 7, and 9. He asserts that his plan calls for 50% of the plaza to be shaded by canopy trees; he utilized mass tree planting but tried to
keep the sculpture open to view; he used various plant materials in the form of annuals to direct attention toward the sculpture and around the snack shop; and used the same, plus a repetition of tree grates in the plaza to direct movement. He claims also that with regard to the wind, the wall will block it, and the use of the wall is enhanced by the use of a repetition of trees to block off the cold wind while nonetheless opening the area to the cooling summer breezes.
Mr. Oliver disputes Petitioner's claim as to shade, indicating that it is not shown on Petitioner's depiction. The eastern and southern parts of the paved area are open to the sun, though the western part is covered. The sculpture would be more attractive, he feels, with a backdrop, and Petitioner's use of trees does not serve as such a device. The plant materials serve to break up the paved area in only two places, and this does not serve to separate the uses of that area. Petitioner appears to have no plan to show that the trees are used to define spaces, nor do they appear, as utilized by Petitioner, to direct movement. The sculpture does this, but it is not a plant. With regard to winds, in Florida, southern and southeast winds predominate. Petitioner has plants in the southwest quadrant but not in the southeast where the intersection is. The annual plants utilized by Petitioner are both colorful and fragrant. Petitioner described them only as annuals, but the program statement calls for annuals plus colorful and fragrant planting. Here Petitioner received credit for annuals but cannot receive double credit for their use when fragrant and colorful are also required. Petitioner has not shown this rationale to be improper.
Turning to question 3B, dealing with planting around an apartment complex, on Factor 2, Petitioner was given credit for five considerations which awards 2 points. He initially contested six considerations of those remaining, but at hearing conceded the Board's grading was right in two of those, leaving a total of four in dispute. Here, there is a requirement for the candidate to landscape a residential site on which fifteen two bedroom townhouses will be grouped. Factors for consideration include common parking and open space and a need for outdoor living areas, and the candidate is advised that the developer wants to have the site functionally and attractively planted considering environmental and cultural/visual programs.
Factor 2 deals with cultural/visual considerations and sub factor 2 requires screening of parking lots from one of the adjoining streets. Here, Petitioner has installed a line of oak trees which, he contends, provides an ample screen, but overlooks the fact that branches beginning 6 to 8 feet above ground are not going to provide much screening at ground level. Entrance planning at the intersecting street makes, he asserts, a pleasing announcement. The dumpster, he claims, is appropriately screened by plants all around, and the hard lines of buildings, he believes, are softened by the use of shrubbery and plant material. According to Mr. Oliver, however, there appears to be, notwithstanding Petitioner's claim, no appropriate entrance planting, - only oak and viburnum, and he believes Petitioner should have copied the entrance to the parking lot which has a more attractive mixture of plants. As accomplished by Petitioner, there is no "announcement" as called for by the examination standards.
With regard to the dumpster, eight viburnum bushes on three sides is insufficiently described. No size is shown though a screening from visual as well as odor contamination is called for. These plants will not screen from view from second floor windows, notwithstanding Petitioner's claim that the plants may get as tall as 30 feet. The building corners need to be screened and not left as merely the joinder of two flat walls. While Petitioner appears to have appropriately softened some walls, he has not done so on all of the buildings. His solution insufficiently addresses the problem.
Concerning factor 6, which deals with plant selections and locations, Petitioner was given 1 point for 1 condition met, but was given no credit for the remaining three conditions. The first of these deals with form and textural contrasts of plants to visually soften hard lines at the building entrance. According to Petitioner, the oak and the viburnum create such a contrast. Viburnum is large and the use of crepe myrtle, a medium texture plant, is noted, while the contrast of the textures is promoted by the use of coarse oaks. Not only does the texture of the plants contrast, Petitioner claims, but the colors contrast as well. He also contends that with regard to the spatial reinforcement of sitting areas with planting, his proposal creates shade for these sitting areas with a canopy over head, and it also allows one sitting area exposure to full sun. He claims that his proposed planting will unify the site in that the live oaks, which he uses to encompass the site, are uniform. He also proposes the use of other trees and repeated the use of some entrance materials in the courtyard.
Mr. Oliver, on the other hand, claims that the western and northern buildings are devoid of any planting on at least one side. The front planting also appear to be in pockets and isolated, and there is no planting on the sides. One sitting area has no planting materials at all. If this is done on purpose, the examiner has no way to know that. Accepting Petitioner's premise, however, Mr. Oliver noted there are plants which would allow sun but still provide color and design. He further asserts that, with regard to unification, there is some repetition, but the north and east sections of the site are not addressed at all, and no planting is proposed in those areas whatever. The examination requires that the total site be addressed, not just a portion thereof.
While the terms used in landscape architecture are subject to interpretation, there are certain basics which are not. These include consistency and uniformity. There may be differences in approach to a problem, such as the softening or the reinforcing of a line, or the de-emphasis of a vertical line, but the basic problems are, nonetheless, subject to specific definition. If, as Petitioner claims, he intended to leave the north and east sides of the buildings in question 3B open for a favorable view, and assuming there are no windows on the northern portion of the eastern buildings and the eastern portion of the northern buildings, Mr. Oliver points out that Petitioner should have noted this on his plan which makes no mention of the intent of the candidate. Since the candidate's intent cannot be determined by other than what appears on the examination paper, here there was clearly a failure of communication which redounded to the Petitioner's detriment.
Assuming that Petitioner were to be given credit for the several additional points referenced herein, he would still not have sufficient points to constitute a passing grade. As graded, Petitioner is approximately 15 points below a passing grade, and based on the analyses of the questions challenged, there is no indication that, even taken in the most liberal context, Petitioner's answers justify the award of more than 1 additional point.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.
Petitioner here challenges the Board's grading of several portions of his answer to the landscape architect examination given in June, 1989, in Florida. He did not pass that examination. Having failed to pass the examination, to succeed in his challenge, he must prove that the subject evaluation of his answers, accomplished by an expert examiner, was arbitrary and without either logic or reason. Harac v. Department of Professional Regulation, 484 So.2d 1333 (Fla. 3rd DCA 1986)
Petitioner has the burden to establish, by a preponderance of the evidence, that the Board's grading of his examination was arbitrary and capricious. He has not done this. He has testified as to his reasons for answering as he did, and urges the acceptance of this as a basis for setting aside the Board's determination and granting him additional credit. In this, he has succeeded only to a slight degree. As was noted above, he should be given credit for an additional sub-element in factor 2, question 3A, and an additional point for his answer to Factor 7, question 3A. Whereas the first gives him no additional points, since he still has satisfied less than ten considerations pertinent to that factor, the other would serve to add one point to his score.- That still leaves him 14 points short of a passing grade
In arriving at this conclusions the expertise of Mr. Oliver, and the evidence of the patent fairness and propriety of the examination and grading processes has been considered, as has the weight and substance of the Petitioner's evidence, his own defense of his performance. Considered together, his defense of his position does not overcome the clear demonstration that not only was the examination and grading process fair and free from disqualifying arbitrariness and capriciousness, but his disputed answers, for the most part, did not meet the requirements of the Board's standards of minimum competence.
Based on the foregoing Findings of fact and Conclusions of Law, it is, therefore:
RECOMMENDED that Petitioner, Thomas W. Hoddinott, be awarded one additional point for his answer to question 3 on the June, 1989 landscape architect examination, but that his challenge to the other points in issue be dismissed.
RECOMMENDED this 27th day of July, 1990, in Tallahassee, Florida.
ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building
Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 1990.
Robert B. Jurand, Esquire
Keith F. Roberts, Esquire Kinsey & Roberts
Board of Landscape Architects 1940 North Monroe Street Tallahassee, Florida 32399-0792
Kenneth E. Easley, Esquire
