STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ELISABETH A. HASSETT, )

)

Petitioner, )

)

vs. ) Case No. 98-2411

)

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, BOARD ) OF LANDSCAPE ARCHITECTS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on July 31, 1998, and on December 9, 1998, in Fort Lauderdale, Florida, before Claude B. Arrington, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Elisabeth A. Hassett, pro se

2297 Southwest 15th Street, No. 125 Deerfield Beach, Florida 33442

For Respondent: R. Beth Atchison, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-1007

STATEMENT OF THE ISSUES

Whether the Petitioner is entitled to a passing grade on the "Integration of Technical and Design" portion of the licensure examination administered in June of 1997.

PRELIMINARY STATEMENT

Petitioner sat for the Integration of Technical and Design, referred to as Section 5, of the Landscape Architect examination that was administered in June of 1997. Respondent is the agency responsible for licensing landscape architects in Florida. The examination, utilized by the Respondent, was developed by the Council of Landscape Architectural Registration Boards (CARLB). The examination is used by states other than Florida.

Petitioner was notified that she had failed Section 5. At her request, Petitioner's responses were re-scored. The results of the re-scoring are the grades at issue in this proceeding.

Section 5 of the examination consisted of five problems, each of equal value. Petitioner received passing scores for problems

1 and 3, but she received failing scores on problems 2, 4, and 5. Initially, Petitioner challenged the scoring of problems 2 and 4, but Petitioner abandoned her challenge to problem 5 at the formal hearing, thereby narrowing her challenge to the scoring of problems 2 and 4. Petitioner would have to establish that she was entitled to a passing grade on either problem 2 or problem 4 to pass Section 5.

The formal hearing was convened on July 31, 1998. One of Petitioner's expert witnesses was under contract with the Respondent. Because that contract contained a provision that prohibited the witness from testifying in a proceeding against the Respondent, the hearing was continued to give the Petitioner

time to find another expert witness or to permit the parties the opportunity to resolve the contractual matter. The formal hearing was reconvened on December 9, 1998. At the formal hearing, the Petitioner presented the testimony of Charles Michael Oliver and Ted Baker. Mr. Oliver is a landscape architect who has served as a consultant and an examination grader for the Respondent for examinations on the state and the national levels and who teaches at Broward Community College.

Mr. Baker is a landscape architect who teaches at Florida International University and who has served as an examination grader on the national level. Petitioner offered five exhibits, each of which was admitted into evidence. Respondent presented the testimony of James T. Penrod, a landscape architect who is the director of examinations for the Counsel of Landscape Architectural Registration Boards, the entity that prepared the subject licensure examination. Respondent presented four exhibits, each of which was admitted into evidence.

Transcripts of the proceedings have been filed. The Petitioner filed a Proposed Recommended Order, which has been duly considered by the undersigned in the preparation of this Recommended Order. Respondent did not file a post-hearing submittal.

FINDINGS OF FACT

1. In July 1997, Petitioner sat for Section 5 of the Landscape Architect Registration Examination that had been

   prepared by the Council of Landscape Architectural Registration Boards (CARLB). CARLB is a national organization that prepares licensure examinations for several states, including Florida.

   Section 5, styled Integration of Technical and Design Requirements, contains 5 vignette problems, each of equal weight. Petitioner received a passing grade for problems 1 and 3. When her responses were initially scored, she did not receive a passing grade for problems 2, 4, and 5. Her responses were re- scored at her request. She did not receive a passing score for these three problems following the re-scoring of her responses.

   For Petitioner to have passed Section 5, she would have had to have a passing score on three of the problems. 1/

2. The candidates were required to prepare design development details for a terrace area. The two problems at issue in this proceeding pertained to the construction of a free- standing wall (vignette problem 2) and the construction of a pool (vignette problem 4).

3. The candidates were to assume that the soils were stable and that the frost depth was 24 inches.

4. The scoring for the five problems required the grader to first determine whether the design by the candidate met the criteria to be scored. Critical issues were identified by the committee that prepared the examination and were part of the scoring criteria used by the graders of the examination. If it did not meet that criteria, the candidate received a grade of

   "s," which is a failing grade. If it met the criteria to be scored, the grader next determined whether the candidate missed any critical items. If there were missed critical items, the candidate received a score of "c," which is a failing grade. If there were no critical items missed, the grader continued grading the design until a final grade was determined.

5. When Petitioner's responses to problems 2 and 4 were initially scored, she received a grade of "c" for both problems. When her responses to the two problems were re-scored, she received a grade of "c" for problem 2 and a grade of "s" for problem 4.

6. For the purposes of scoring the examination, the term "Critical Failure," for which the candidate would receive a grade of "c," is defined as: solution indicates a life/safety error or fails to demonstrate the primary knowledge being tested on the vignette problem.

7. For the purposes of scoring the examination, the term "unscoreable" [sic] for which the candidate would receive a grade of "s" is defined as: the solution is blank or fails to follow basic problem requirements given in the vignette problem statement.

8. Problem 2 required the candidates to draw a cross- section of a free standing wall. The candidates were instructed to label materials, fasteners, finishes, and/or joining materials. Among the critical issues identified for problem 2

   are the following, which Respondent asserts that Respondent failed to meet: 2/

   Stone veneer is not tied to the wall. Fails to show compacted subbase and/or subgrade (i.e., compacted and undisturbed

   subgrade or compacted granular base shown).

   
   

9. There was a dispute between Petitioner's expert witnesses and Respondent's expert witnesses as to whether Petitioner's response to vignette problem 2 should have received a passing grade. Respondent's expert was of the opinion that masonry ties should have been used to tie the stone veneer to the wall, and that Petitioner's failure to do so merits a failing grade. Petitioner's experts were of the opinion that Petitioner adequately tied the stone veneer to the wall by using mortar.

   The conflict in the evidence is resolved by finding that while tying the stone veneer to the wall with masonry ties is the preferred method, using only mortar is an acceptable method.

   Using only mortar does not meet the definition of a critical failure issue.

10. Respondent's expert also was of the opinion that Petitioner's failure to show that the area under the footing of the wall was compacted subgrade is a critical fail issue. Petitioner showed that certain areas above the footing were to be compacted subgrade, but she clearly did not show the area under the footing to be compacted subgrade. Respondent established that this is a critical failure issue because the failure to erect the wall on compacted subgrade could impair the structural

    integrity of the wall. This failure justified the failing grade, given Petitioner's response to problem 2.

11. Vignette problem 4 required Petitioner to show the cross-section of a poured-in-place concrete pool. Among other instructions, the candidates were told to include a permanent combination drain/overflow structure and to label all critical dimensions. The only critical issue for problem 4 was the following: "Pool does not extend to or below frost depth (from top of water elevation)(dimensioned, labeled or noted)."

12. Initially, Petitioner's response to problem 4 was awarded a score of "c." When it re-scored, the grade was changed from a "c" to an "s."

13. Respondent's expert testified that the design was re- scored as an "s" because of the manner Petitioner's depicted the drain/overflow structure. In her notes, she indicated that the drain/overflow structure was a "2 x 18" high standpipe with dome removable from floor drain." The structure she described was not the structure she drew. As drawn, the drain/overflow structure would not have worked because it could not have been removed from the floor drain. The manner in which she drew the drain/overflow structure established that Petitioner was not entitled to a passing grade for problem 4.

14. Petitioner's design did not place the bottom of the pool at or below the frost depth and she did not dimension, label, or note, the frost depth. Her experts argued that frost depths are not a factor that needs to be considered in Florida and that her failure to address the frost depth issue should not be a critical failure issue. That argument is rejected because Petitioner was not at liberty to ignore the fact that the hypothetical structure was to be built in an area with a frost depth of 24 inches. 3/

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction of the parties to and the subject of this

    proceeding. Section 120.57(1), Florida Statutes.

16. Section 481.309, Florida Statutes, requires that a candidate for licensure as a landscape architect in Florida must apply to the Respondent to sit for a licensure examination. 4/

17. Petitioner has the burden of proving by a preponderance of the evidence that she is entitled to additional credit for her responses to the two problems at issue. See Harac v. Department of Professional Regulation, 484 So. 2d 1333 (Fla. 3d DCA 1986); State ex rel. I. H. Topp v. Board of Electrical Contractors for Jacksonville Beach, Florida, 101 So. 2d 583 (Fla. 1st DCA 1958); and State ex rel. Glaser v. J. M. Pepper, 155 So. 2d 383 (Fla. 1st DCA 1963). Petitioner did not meet that burden.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order that dismisses Petitioner's challenge to her grades to problems 2

and 4 of the "Integration of Technical and Design" portion of the licensure examination administered in June of 1997.

DONE AND ENTERED this 10th day of March, 1999, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 10th day of March, 1999.

ENDNOTES

1/ Petitioner received a passing score of two of the problems. She could have also passed Section 5 if she had received "barely failed" scores on the remaining three problems. Because she abandoned her challenge to one of the problems she failed, that option was not available to her.

2/ Also included as a critical issue is the following: Footing does not extend to or below frost depth (frost depth dimensioned, labeled or noted). While Petitioner's experts addressed this issue, Mr. Penrod, Respondent's expert, did not cite this issue as a basis for Petitioner's failing grade. Consequently, whether the design properly shows the footing beneath the frost line has not been considered by the undersigned to be relevant to problem

3/ Mr. Penrod limited his testimony pertaining to problem 2 to Petitioner's failure to appropriately tie the stone veneer to the wall and her failure to show that the area under the footing of the wall was compacted subbase or subgrade, the two issues considered by the undersigned. The testimony of Petitioner's experts regarding the frost depth issue was considered in regard to problem 4.

4/ Section 481.309(2), Florida Statutes, makes it clear that the licensure examination need not be limited to the specialized aspects of the practice of landscape architecture in Florida.

Consequently, it is concluded that Respondent is free to test a candidate on general principles of landscape architecture even if a candidate is not likely to encounter the hypothetical context set forth in a problem. Section 481.309(2), Florida Statutes, provides as follows:

The licensure examination shall include, but not be limited to an examination on the specialized aspects of the practice of landscape architecture in this state.

COPIES FURNISHED:

R. Beth Atchison, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007

Elisabeth A. Hassett

2297 Southwest 15th Street No. 125

Deerfield Beach, Florida 33442

Jim Rimes, Executive Director Board of Landscape Architects Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Lynda L. Goodgame, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 98-002411

Orders for Case No: 98-002411