STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALCIDES SANTIESTEBAN, )

)

Petitioner, )

)

vs. ) CASE NO. 93-6511

)

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, BOARD ) OF ARCHITECTURE AND INTERIOR ) DESIGN, )

)

Respondent. )

)

RECOMMENDED ORDER

On January 18, 1994, a formal administrative hearing was held in this case in Tampa, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Alcides Santiesteban, pro se For Respondent: Vytas J. Urba, Esquire

Assistant General Counsel Department of Business and

Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street

Tallahassee, Florida 32399-0750 STATEMENT OF THE ISSUE

The issue in this case is whether the Petitioner passed the Division B-Site Design I portion of the written examination administered by the Department of Business and Professional Regulation, Board of Architecture and Interior Design, on or about June 14, 1993.

PRELIMINARY STATEMENT

The Petitioner received a grade of 74 percent on the Division B-Site Design I portion of the written examination administered by the Department of Business and Professional Regulation, Board of Architecture and Interior Design, on or about June 14, 1993. Since 75 percent was passing, the Petitioner was notified that he failed the exam.

On or about October 13, 1993, the Petitioner filed a request for formal administrative proceedings. The matter was referred to the Division of Administrative Hearings on November 10, 1993. On November 30, 1993, a Notice of Hearing was issued scheduling the matter for final hearing on January 18, 1994.

At the final hearing, it was revealed that the Petitioner already had credit for the two questions he initially sought to challenge, but he still wanted to challenge two other questions.

The Petitioner called an expert witness and also testified in his own behalf. The Respondent called two expert witnesses. Petitioner's Exhibits 1 through 3 and Respondent's Exhibit 1 were admitted in evidence.

The Respondent ordered the preparation of transcript of the final hearing.

The parties were given ten days from the filing of the transcript in which to file proposed recommended orders. The transcript was filed on February 3, giving the parties until February 14, 1994, in which to file proposed recommended orders. Only the Department filed a proposed recommended order, and explicit rulings on the proposed findings of fact it contains may be found in the attached Appendix to Recommended Order, Case No. 93-6511.

Due to the Department's desire to preserve the integrity of the examination, and the confidentiality of examination questions not invalidated as a result of this proceeding, the Findings of Fact are written, to the extent possible, so as not to disclose the precise exam questions and answers.

FINDINGS OF FACT

1. The Petitioner was given a score of 74 percent on the Division B-Site Design I portion of the written examination administered by the Department of Business and Professional Regulation, Board of Architecture and Interior Design, on or about June 14, 1993. 75 percent was passing. He challenged two of the questions on the exam.

   
   

   First Challenge

   
   

2. On the first multiple-choice question the Petitioner challenged (the first question on Petitioner's Exhibit 1), the correct answer was required to depict both a "defined entrance facing south" and "a sense of mystery and surprise defined by the buildings." The Petitioner's answer clearly was incorrect. The entrance it depicted was not "defined," and there was little "sense of mystery and surprise defined by the buildings." The correct choice depicted both. (So did another choice, but it is not necessary to attempt to distinguish between the two--on the basis of whether the correct answer also was required to depict a small plaza--since the Petitioner chose neither.)

   
   

3. 1224 of the 1430 examinees chose the answer for which credit was given. Only 30 chose the Petitioner's answer. These results validate the Petitioner's score on this question.

   
   

4. The Petitioner did not prove either that the answer he chose was correct, that he should have been given credit for his answer or that the question should have been discarded.

   
   

   Second Challenge

   
   

5. On the second multiple-choice question challenged (the second question on Petitioner's Exhibit 1), the Petitioner's choice did not describe the plan he had in mind. It omitted one element of the plan--a building in the center. Without the missing element, the plan chosen by the Petitioner clearly was incorrect.

6. Even with the missing element, the the plan chosen by the Petitioner was impractical and would not be found in actual practice. The examination was designed to be taken by persons having practical as well as academic experience, and the examinees were expected to draw on both aspects of their experience.

   
   

7. 949 of the 1430 examinees chose the answer for which credit was given.

   341 chose the Petitioner's answer. These results do not invalidate the Petitioner's score on this question.

   
   

8. The Petitioner did not prove either that the answer he chose was correct, that he should have been given credit for his answer or that the question should have been discarded.

   
   

   CONCLUSIONS OF LAW

   
   

9. Section 481.209(1), Fla. Stat. (1993), requires applicants for a license to practice architecture to take and pass a written examination administered and graded by the Department of Business and Professional Regulation.

   
   

10. Section 455.217, Fla. Stat. (1993), requires that the examination "adequately and reliably measure an applicant's ability to practice the profession regulated "

    
    

11. The applicant has the burden to prove that he was entitled to a passing grade on the exam. In this case, the Petitioner did not meet his burden of proof.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent, the Department of Business and Professional Regulation, Board of Architecture and Interior Design, enter a final order denying the Petitioner's exam challenge.

RECOMMENDED this 8th day of March, 1994, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6511

To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the Department's proposed findings of fact (the Petitioner not having filed any:

1.-2. Accepted and incorporated to the extent not subordinate or unnecessary.

1. First two sentences, accepted and incorporated to the extent not subordinate or unnecessary. Third sentences, rejected as contrary to the facts found and as contrary to the evidence. Fourth sentence, rejected as to "B," as contrary to the facts found and as contrary to the evidence; as to "C," accepted and incorporated to the extent not subordinate or unnecessary. Fifth sentence, accepted but irrelevant, subordinate and unnecessary. Sixth sentence, accepted but subordinate to facts found, and unnecessary. Last sentence, accepted and incorporated to the extent not subordinate or unnecessary.

2. First two sentences, accepted and incorporated to the extent not subordinate or unnecessary. Middle sentences, accepted but largely subordinate to facts found, and unnecessary. Last sentence, rejected in part as not proven (the reasons why other candidates chose the answer for which credit was given is speculation); otherwise, accepted and incorporated.

COPIES FURNISHED:

Alcides Santiesteban 1224 East Palifox

Tampa, Florida 33603

Vytas J. Urba, Esquire Assistant General Counsel Department of Business and

Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street

Tallahassee, Florida 32399-0750

Angel Gonzalez, Executive Director Board of Architecture

and Interior Design Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0751

Jack McRay, Esquire Acting General Counsel

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the Department of Business and Professional Regulation, Board of Architecture and Interior Design, written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the Department of Business and Professional Regulation, Board of Architecture and Interior Design, concerning its rules on the deadline for filing exceptions to this Recommended Order.

Docket for Case No: 93-006511

Orders for Case No: 93-006511