STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSEPH F. DELATE, )

)

Petitioner, )

)

vs. ) CASE NO. 91-2624

) BOARD OF LANDSCAPE ARCHITECTURE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on July 16 and 25, 1991, in Naples, Florida.

APPEARANCES

For Petitioner: Joseph F. Delate, pro se

210 Timberlake Drive, Apt. 203 Naples, Florida 33942

For Respondent: Vytas J. Urba, Esquire

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUES

Whether petitioner's score on Section 4 of the June 1990 landscape architect licensure examination should be changed to a passing grade.

PRELIMINARY STATEMENT

By notice dated October 8, 1990, respondent, Board of Landscape Architecture, advised petitioner, Joseph F. Delate, that he had received a 65.7, or a failing grade, on Section 4 (design implementation) of the June 1990 landscape architecture examination. After having his examination regraded through a review process, which resulted in his score being adjusted upward to 73, petitioner requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes (1989), to contest his grade. As grounds, petitioner contended that (a) his examination was graded carelessly and inconsistently, (b) the instructions given at the examination and regrading session were "confusing and interruptive", (c) the regrading of his examination was done improperly, (d) the Board arbitrarily changed the required grade for passing from 74.5 to 75, (e) the Board arbitrarily "threw out" three multiple choice questions on the examination that petitioner had correctly answered, and (f) he did not receive proper credit on factors 1-4 of subsection 4a and factors 1-6 of subsection 4b. The matter was referred by respondent to the Division of Administrative Hearings on April 29, 1991, with a request that a hearing officer be assigned to conduct a hearing. By notice of hearing dated May 7, 1991, a final hearing was

scheduled on July 16, 1991, in Naples, Florida. A continued hearing was held on July 25, 1991, at the same location.

At final hearing, petitioner testified on his own behalf and presented the testimony of Dennis Church, a candidate on the same examination, and Kent Carlyle, an engineering technician. Also, he offered petitioner's exhibits 1-7. All exhibits were received in evidence. Respondent presented the testimony of Martin Persampieri, a DPR examination supervisor, and Charles Michael Oliver, a Board consultant and licensed landscape architect. Also, it offered respondent's exhibits 1

The transcript of hearing (two volumes) was filed on August 16, 1991.

Proposed findings of fact and conclusions of law were originally due on August 26, 1991. At the request of petitioner, this time was extended to and including September 16, 1991, and the same were timely filed by the parties on that date. A ruling on each proposed finding is made in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. In June 1990, petitioner was a candidate on section 4 of the landscape architect examination, having previously passed the other five sections on the examination. The test was administered by the Department of Professional Regulation (DPR) on behalf of respondent, Board of Landscape Architecture (Board). On October 8, 1990, DPR issued a written uniform grade notice advising petitioner that he had received a grade of 65.7 on the examination. A grade of

   75 is necessary to pass this section of the examination.

   
   

2. The Board has adopted a rule authorizing an unsuccessful candidate to attend a post-examination review session in Tallahassee for the purpose of challenging his grade. Under this procedure, a candidate may request another grader to regrade the challenged portions of the examination. In this case, petitioner opted to use this procedure and challenged various problems in section 4. Two other graders regraded the examination and, while raising some scores, the graders also lowered others, which resulted in an overall scale score of 73.

   
   

3. By letter dated March 31, 1991, petitioner requested a formal hearing to contest his grade. In his letter, Delate generally contended he was entitled to a passing grade because his examination solutions were graded in a "careless and inconsistent nature", the instructions given at the examination were "very confusing and interruptive", the regrading of his examination was improper because it resulted the in lowering of the original scores on some problems, three multiple choice questions were arbitrarily thrown out after the examination was given, the passing grade was arbitrarily raised by the Board from 74.5 to 75, and he did not receive appropriate credit on ten problems.

   
   

4. The June 1990 examination was a uniform national examination used in approximately thirty-eight states, including Florida. With the exception of one section, all sections on the examination were prepared by the Council of Landscape Architectural Registration Boards (CLARB), a national organization of which the Florida board is a member. The examination is blind graded by volunteer licensed landscape architects who receive training from and are "standardized" by master graders prior to the test. On this examination, the

   solutions by all candidates from the southeastern region of the United States, including Florida, were placed in one group and graded by the same persons. The graders used an evaluation guide prepared by CLARB which contained guidelines and criteria for assigning scores. Since two parts of section 4 are graded subjectively, it is not unusual for two graders to reach a different conclusion with respect to a particular problem. There is no evidence that the first or second graders who reviewed Delate's examination were arbitrary, inconsistent or careless as he has alleged.

   
   

5. Section 4 of the examination involves the subject matter of design implementation and consists of parts 4a and 4b. Part 4a had four factors (problems) while part 4b had seven factors. Each factor is assigned points which may range from zero for no credit to as high as eight, depending on the number of items in the factor. In this case petitioner has challenged the score he received on all four factors in part 4a and factors one through six in part 4b.

   
   

6. In order to maintain the confidentiality of the specific problems on this examination, it is suffice to say that the candidate on section 4 was required to prepare a large drawing for each part, one being a "layout and dimensioning" drawing, that is, he was required to lay out fixed and proposed elements (e.g., sidewalks, drains, paving detail) and to locate their dimensions, and the other being a "detail and specification" drawing which required the candidate to draw the details and specifications for such things as walls, pavement, decking and the like. Petitioner's drawings have been received in evidence as respondent's exhibits 4 and 5.

   
   

7. Each party presented evidence regarding the appropriate grade that should have been assigned to the problems in dispute. Petitioner testified on his own behalf and presented the testimony of another candidate on the same examination and an engineering technician. Although the undersigned allowed the witnesses to express opinions regarding the examination, none were qualified or accepted as experts, and none were familiar with the specific grading criteria for this examination. The Board presented the testimony of a long-time licensed landscape architect, C. Michael Oliver, who is a master grader for CLARB and has been grading the national examination for a number of years. As a master grader, Oliver trains other graders on the national examination. Petitioner's contention that Oliver's testimony is irrelevant has been rejected. 1/

   
   

8. Oliver regraded parts 4a and 4b on petitioner's examination and concluded that Delate was not entitled to a passing grade. He reached this conclusion as to part 4a because the candidate had missing or incorrect dimensions, inaccurately located elements, and poorly communicated plan layout. The expert also reached the same conclusion with respect to part 4b because the candidate had a lack of dimension, missing elements, an unsound structure, and poor communicative skills. This testimony is found to be more credible and persuasive than that offered by petitioner and is hereby accepted. Therefore, it is found that petitioner was not entitled to have his grade raised on parts 4a and 4b.

   
   

9. Petitioner also contended that he would have received a passing grade if the Board had not thrown out three multiple choice questions after the examination was given. However, the evidence shows that if the questions had been used, the passing grade (based upon the difficulty of the examination) would have been raised and petitioner would still not achieve a scale score of 75.

10. Petitioner next contended that the Board acted improperly during the regrading process because the second graders lowered the scores from the original grade on some of the challenged questions. In other words, the second graders not only raised certain scores, but they also lowered others resulting in a revised grade of 73, still short of the required 75. Delate complained this was unfair and that no prior notice was given to him regarding this procedure. However, it was established that this process, which is not codified by rule, is an accepted testing procedure, is used on all professional examinations administered by DPR, and never results in the revised score being reduced below the original overall score. Therefore, the agency's policy is found to be justified and adequately explicated. Delate also contended that the review session graders were given unlimited time to grade the examination in contrast to the original graders who had a compressed time schedule and numerous examinations to review. Even so, this can hardly be deemed to be arbitrary or unfair since the second graders raised petitioner's grade by some seven points.

    
    

11. Petitioner's next contentions concerned "confusing and interruptive" instructions allegedly given at both the examination and regrading session and an allegation that the Board acted arbitrarily by changing (on an undisclosed date) the required grade for passing from 74.5 to 75. However, there was no evidence to support the allegation that these matters prejudiced petitioner, and in any event, all original and review session candidates would have been subject to the same interruptions, time constraints and passing grade requirements. Further, if the change in the passing grade (from 74.5 to 75) occurred after the examination was given, petitioner's grade (73) was still too low to be affected by that change.

    
    

12. Finally, petitioner cited the fact that he will lose his job as a landscape architect with Collier County if he does not receive a passing grade. While this factor obviously has profound economic and personal ramifications for petitioner, it is not a consideration in the grading process.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes (1989).

    
    

14. As the petitioner in this cause, Delate bears the burden of proving by a preponderance of the evidence that he is entitled to a passing grade. See, e.

    g. Fla. Department of Transportation v. J. W. C. Company, Inc., 396 So.2d 778, 789 (Fla. 1st DCA 1981).

    
    

15. Petitioner's principal challenge concerns the allegation that he should have received a higher grade on parts 4a and 4b. In this regard, it is noted that one who fails a licensure examination shoulders a heavy burden in proving that a subjective evaluation by an expert is arbitrary. Harac v. Department of Professional Regulation, Board of Architecture, 484 So.2d 1333, 1338 (Fla. 3d DCA 1986). Here the evidence supports a conclusion that petitioner has not met his burden of demonstrating that his examination was graded in an arbitrary manner. Indeed, the more persuasive evidence shows that there was no basis nor justification for raising petitioner's grade on the challenged problems.

    
    

16. Petitioner's remaining contentions regarding the rejection of three multiple choice questions, confusing and interruptive instructions, 2/ unfair

grading and the raising of the passing grade from 74.5 to 75 are also deemed to be without merit. Therefore, petitioner's grade should not be changed.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board enter a final order confirming petitioner's

grade of 73 on section 4 of the June 1990 examination.

DONE and ENTERED this 20th day of September, 1991, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 1991.

ENDNOTES

1/ Delate contended at hearing that because Oliver was not one of the original or second graders, his testimony is irrelevant. As a number of appellate cases teach us, the regrading of an examination by a third party is a well-established method for proving or disproving the legitimacy of a candidate's grade.

2/ If an allegation of confusing and interruptive instructions is sustained, the appropriate remedy is not to raise the candidate's grade but rather is to allow the candidate to retake the examination without charge. Jones v.

Department of Professional Regulation, Board of Acupunture, 524 So.2d 700 (Fla. 1st DCA 1988).

APPENDIX TO RECOMMENDED ORDER

Petitioner:

1. Partially adopted in finding of fact 9.

2. Rejected. See finding of fact 6 and footnote 1.

3. Partially adopted in finding of fact 9.

4. Partially adopted in finding of fact 11.

Respondent:

Note - Where findings have been partially used, the remainder has been rejected as being irrelevant, not supported by the evidence, unnecessary, subordinate, or a conclusion of law.

COPIES FURNISHED:

Vytas J. Urba, Esquire

1940 North Monroe Street, Suite 60

Tallahassee, FL 32399-0792

Joseph F. Delate

210 Timberlake Circle, Apt. 220 Naples, FL 33942

Angel Gonzalez, Executive Director Board of Landscape Architecture 1940 North Monroe Street Tallahassee, FL 32399-0792

Jack L. McRay, Esquire

1940 North Monroe Street, Suite 60

Tallahassee, FL 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-002624

Orders for Case No: 91-002624