STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GLEN P. HAMNER, JR., )

)

Petitioner, )

)

vs. ) CASE NO. 80-1977

)

FLORIDA DEPARTMENT OF ) PROFESSIONAL REGULATION, BOARD ) OF ARCHITECTURE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for administrative hearing before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings, on January 22, 1981, in Pensacola, Florida.

APPEARANCES

For Petitioner: Glen P. Hamner, Jr., pro se

1231 Bayshore Drive

Valparaiso, Florida 32580

For Respondent: John Rimes, Esquire

Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32301

The Petitioner, Glen P. Hamner, Jr., is an applicant for licensure by examination to practice architecture in the State of Florida. The professional architecture examination consists of two parts, one of which is the written examination given in December of each year, and the other of which is a site and design plan problem administered in June. The Petitioner has met all requirements requisite for admittance to the licensure examination. The Petitioner, who took the design and site planning portion of the National Architectural Examination (as adopted in Florida) in June, 1980, was notified of his failure to pass that portion of the examination by the Office of Examination Services of the Department of Professional Regulation and the Board of Architecture. The Petitioner was notified of his right to a hearing to dispute the examination grade pursuant to Section 120.57, Florida Statutes, and elected to avail himself of that opportunity to present evidence in support of his position that his examination score and effort was adequate.

During the course of the hearing, the Petitioner presented one witness and one exhibit, and the Respondent presented one witness and five exhibits. The issue to be resolved in this proceeding concerns whether the Petitioner's performance on the design and site planning portion of the architectural examination was adequate to justify his licensure as an architect.

Subsequent to the hearing the Petitioner also filed a rules challenge proceeding pursuant to Section 120.56, Florida Statutes, challenging Rules 21B- 14.01, 21B-14.02 and 21B-14.03, Florida Administrative Code, [successors to Rule 21B-2.02(2)] which provide for the adoption and administration of the subject examination. In view of the advent of that rules challenge proceeding (see DOAH Case No. 81-967R), the parties stipulated that this case be held in abeyance pending the outcome of the rules challenge proceeding. The parties waived the 30-day requirement for the recommended order (Rule 28-5.402, Florida Administrative Code) regarding this proceeding, as well as the rules challenge proceeding, and also waived the 30-day requirement for hearing and rendition of final order in the rules challenge proceeding. They requested and were granted an extended briefing schedule for both cases.

At the conclusions of both proceedings, the parties availed themselves of the opportunity to have the proceedings transcribed and the opportunity to file proposed findings of fact and conclusions of law and briefs. All proposed findings, conclusions, and supporting arguments of the parties have been considered. To the extent that the proposed findings and conclusions submitted by the parties, and the arguments made by them, are in accordance with the findings, conclusions and views stated herein, they have been accepted, and to the extent such proposed findings and conclusions of the parties, and such arguments made by the parties are inconsistent therewith, they have been rejected. Certain proposed findings and conclusions have been omitted as not relevant or as not necessary to a proper determination of the material issues presented. To the extent that the testimony of the witnesses is not in accord with the findings herein, it is not credited.

FINDINGS OF FACT

1. The Petitioner, Glen P. Hamner, Jr., has applied for licensure by examination to practice architecture in the State of Florida. The architectural licensure examination, administered by the Respondent, consists of two portions, the written examination given in December of each year, and the site planning and design portion administered in June of each year. The Petitioner has complied with all requirements for admittance to the subject examination.

   
   

2. The Petitioner sat for the 12-hour "Part A" examination in June, 1980. The examination consists of a drafting or sketching problem and is so constituted as to require the applicant for licensure to design a particular type of building to be accommodated to a particular site, including requirements for placing the structure on the site, designing elevations, building cross sections, facades and floor plans, as well as taking into consideration numerous criteria such as human traffic flow, parking, access to all areas, heating and cooling, including solar heating potential, prevailing climate conditions, use of natural lighting, and numerous other esthetic, engineering and legal requirements. The examination is administered by the Office of Examination Services of the Department of Professional Regulation and is supplied to the State of Florida, as well as to all other jurisdictions in the United States by the National Council of Architectural Registration Boards (NCARB). The examination was adopted in Florida pursuant to the above-cited rules.

   
   

3. Prior to sitting for the examination, each applicant, including the Petitioner, receives a pre-examination booklet setting forth the architectural program to be accomplished by that applicant and various requirements to which the Petitioner was expected to apply himself in order to receive a passing grade. Immediately prior to commencing the examination itself, the Petitioner

   received other information designed to enable him to more adequately design the structure requested and perform the necessary technical and architectural requirements of the problem. In general, the examination was designed to require the Petitioner to design a solution to the site plan and building design problem submitted to him by the NCARB and the Florida board. The pertinent portion of the examination thus allows the examination graders and, through them, the Florida Board of Architecture to determine whether an applicant, such as the Petitioner, is able to coordinate the various structural, design, technical, esthetic, energy and legal requirements in order to resolve the design and site plan problem after having been tested on the same requirements in written form in the initial portion of the examination administered in December of each year.

   
   

4. The grading of the design and site portion of the examination was accomplished by submission of the Petitioner's work product to at least three architects selected by the various architectural registration boards of 20 states. These graders are given training by the NCARB in order to standardize their conceptions of minimal competence required for achievement of a satisfactory grade on the examination. Each architect grader is then asked to review and score various solutions to this site and design problem, including the Petitioner's, in a blind grading basis. The grader has no knowledge of the name or state of origin of the applicant whose solution he is grading. The grader is instructed to take into consideration the various criteria set forth in Rule 21B-14.03, Florida Administrative Code, as well as in Respondent's Exhibit Three. The graders are instructed to note the areas of strength and weakness in an applicant's solution with regard to those grading criteria and then determine, based on an overall conception of the solution submitted by the applicant, whether or not a passing grade is warranted. A passing grade is defined as a holistic grade of three or four as set forth in Rule 21B-14.04, Florida Administrative Code. The applicant must receive at least two passing grades from the three architect graders who independently grade his solution in order to pass that portion of the examination.

   
   

5. The Petitioner herein received two "1's" and one "2" on the examination, all of which were failing grades. Although he demonstrated an effort to comply with instructions set forth in the examination, as well as the pre-examination booklet, he failed to achieve sufficient clarity of presentation in several material areas such that the graders could make a clear determination that he understood and had complied with sufficient of the mandatory criteria to achieve passage of the examination. The testimony of the Respondent's witnesses (Herbert Coons, Executive Director of the Florida Board of Architecture and a grader in this examination, and Mr. Dan Branch, a grader of the petitioner's own examination) shows that the petitioner failed to supply sufficient information to permit a passing score to be awarded based on the criteria required to be considered and complied with by the authority cited below. The Petitioner's examination was deficient in a number of material respects. Many technical errors were pointed out by these witnesses, as well as by the petitioner's own admissions. The record thus discloses that the Petitioner's examination solution was deficient in its allowance for parking space and the ability of vehicular ingress to egress from the parking lot surrounding the building to be designed. There were no room designations on the rooms in the floor plan; there was only one rest room space and one set of toilets for men and women where two spaces and sets of facilities were required by the instruction program. The Petitioner failed to mark the building elevations on the building floor plans, did not depict where furniture would be located, and two different elevation drawings and two sectional drawings required to be depicted on the examination were not. The Petitioner did not show what type of material would be used in

   the roof nor what type of insulation, nor did he show what type and uses of glass were to be made. The Petitioner failed to give adequate consideration to grading and site planning, failed to adequately make notation of the types of materials to be used in the elevation's floor plans and wall sections, and generally did not adequately adhere to the program presented him.

   
   

6. In general, it was shown by these witnesses that while the Petitioner had made a substantial effort to pass the examination, he had failed to place within the solution adequate information to allow the graders to determine clearly that his program or design could be a successful one. The Petitioner's own admissions show that he approached the examination in question in such a manner as to substitute his own judgment and opinion regarding which techniques and components were architecturally sound for the problem for those required to be treated as essential elements of the site and design problem posed him in the instructions. The program presented to the Petitioner assumed he would be in the hypothetical position of an "architect" presented with a program which had already reached a point of completion as to design ideas and site location. The insertion of his own ideas and judgment regarding various elements of the project is contrary to established architectural practice, for a program which had already reached the point of completion, in terms of initial design decisions, as that presented to the examination candidates in this instance.

   
   

7. In view of the above-determined deficiencies, the Petitioner did not establish that his solution to the site and design-problem posed by the examination reflected sufficient and appropriate consideration of the requirements and criteria he was instructed to address.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Section 120.57(1), Florida Statutes.

   
   

9. The passage of an examination in order to practice architecture in the State of Florida is mandated by Section 481.213(2), Florida Statutes, which states: "The Board shall certify for licensure any applicant who satisfies the requirements of Sections 481.209 and 481.211." The criteria to be evaluated in the examination, the content of the examination, the grading criteria to be used in considering the adequacy of an applicant's response to the content and requirements of the examination, as well as the criteria for determination of passing grades, are contained in Rules 21B-14.02, 21B-14.03 and 21B-14.04, Florida Administrative Code.

   
   

10. If an applicant fails a portion of the examination, he is entitled to a grade review pursuant to Rule 21B-14.05, Florida Administrative Code, and, if the facts are disputed, a formal hearing pursuant to Section 120.57, Florida Statutes. This procedure is provided for in Section 455.217(2), Florida Statutes, which states:

    
    

    The board shall make available an examination review procedure for applicants. Unless prohibited or limited by rule implementing security or access guidelines of national examinations, the applicant is entitled to review the examination questions, answers, papers, grades, and grading key. An applicant

    may waive in writing the confidentiality of his examination grade.

    
    

11. The examination in question and grading criteria contained therein have been challenged in the past and have been upheld as a rational tool for determining the competency of architects to practice their profession in the United States. See, Henkes v. Fisher, 314 F. Supp. 101 (W.D. Mass. 1977), affirmed 91 S.Ct. 462, 400 U.S. 985, 27 L.Ed.2d 436 (1972). See also, DOAH Case No. 80-967R.

    
    

12. The action of an administrative agency, when within the powers validly conferred upon it, is, in the absence of proof to the contrary, presumed to be valid and correct. Hayes v. Bowman, 91 So.2d 795 (Fla. 1957). All reasonable presumptions should be indulged in favor of the validity of the agency's actions. Varholy v. Sweat, 15 So.2d 267 (Fla. 1953).

    
    

13. The Petitioner herein failed to carry the burden necessary to show that an error was made in the determination of his grade. Indeed, the testimony clearly showed, and the Petitioner admitted, that he failed to supply certain material information which was specifically required by the examination instructions supplied him prior to the examination. The failure by the Petitioner to supply the information required by the examination instructions, to give adequate regard to the mandatory design criteria and considerations, and his solution to the examination problem renders the conclusion inescapable that the determination of the examination graders that the Petitioner failed to adequately and successfully complete the site and design portion of the architectural examination should be upheld.

    
    

14. The Petitioner's presentation of his case, when viewed in its most favorable light, demonstrated that reasonable men might differ regarding the completeness of his examination and the adequacy of his response to the problems posed. This, however, is not sufficient to support a determination that an error has been made on the part of the Respondent in grading Petitioner's examination. In State ex rel. I.H. Topp v. Board of Electrical Examiners in Jacksonville Beach, 101 So.2d 583 (Fla. 4th DCA 1958), the Court stated:

    
    

    It is clear from the evidence in the instant case that the respondent Board, in the exercise of its lawful authority, determined that the relator failed to earn a passing grade on its examination. Admittedly there will be questions on examinations of this type for which the amount of credit to be given various answers may differ in the minds of reasonable men. That such conditions exist is not alone sufficient cause from which to bottom an alleged abuse of discretion, particularly when as here the ultimate responsibility for assigning grades to such answers falls on those who have been duly elected or appointed to the Board and whose function it is to issue a certificate of competency only after being satisfied as to the applicant's entitlement.

    
    

    Under such circumstances, the court will be extremely reluctant to substitute its judgment

    for that of the duly authorized Board; else the Board would be compelled through the judicial arm of Mandamus to issue its certificates of competency not in its own discretion, but upon that of the court. (Emphasis supplied.)

    
    

15. Accordingly, based upon the testimony of the Respondent's expert witnesses, as well as the admissions elicited from the Petitioner during cross- examination, it must be concluded that the Petitioner failed to sustain his burden of showing that an error occurred in the grading of his examination. The grading procedure by which the Petitioner's examination was evaluated has been shown to be consistent with the evaluation criteria and standards set forth in the rules of the Florida Board of Architecture as being necessary to a proper determination of performance on the site and design portion of the architectural examination.

RECOMMENDATION

Having considered the foregoing findings of fact and conclusions of law, the evidence in the record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is

RECOMMENDED that the failing grade conferred on the Petitioner on the June, 1980, site and design portion of the architectural examination be upheld, and that the petition be denied.

DONE and ENTERED this 19th day of November, 1981, in Tallahassee, Florida.

P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 1981.

COPIES FURNISHED:

Mr. Glen P. Hamner, Jr. 1231 Bayshore Drive

Valparaiso, Florida 32580

John Rimes, Esquire Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32301

Samual Shorstein, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 80-001977

Orders for Case No: 80-001977