JOHN F. BINKLEY, )
vs. ) CASE NO. 80-1981
Respondent. )
Pursuant to notice this cause came on for administrative hearing on March 10, 1981 at Fort Pierce, Florida before P. Michael Ruff, Hearing Officer of the Division of Administrative Hearings.
For Petitioner: John F. Hinkley
Port St. Lucie, Florida 33452
Pursuant to an examination review of September 15, 1990, the Petitioner was finally notified of his failure to pass the architectural design portion of the Professional Architectural Examination as provided for in Rule 21B-14, Florida Administrative Code. 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 petition for that opportunity to present evidence in support of his position that his examination was adequate.
During the course of the hearing the Petitioner presented one witness and one exhibit. The Respondent presented two witnesses and four exhibits. The issue to be resolved in this proceeding is 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.
The Petitioner, John Binkley, 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. Petitioner has complied with all requirements for admittance to the subject examination.
The Petitioner sat for a twelve hour examination consisting of a drafting or sketching problem concerning which he was required to design a particular type of building to be accommodated to a particular site, taking into consideration numerous criteria such as human traffic flow, parking, access to both floors, heating and cooling, including passive solar heating, prevailing climate conditions and numerous other aesthetic, 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) . Pursuant to the authority delineated below, this examination has been adopted for use by Florida applicants for licensure. The examination itself is so constituted as to require the applicant for licensure, the Petitioner, to design a structure for placement on a particular site, including mandatory requirements for accommodating the structure to the site, and vice versa, detailed design of elevations, building cross-sections, facades, and floor plans, effective use of natural light and solar heating potential, regard for the physical and aesthetic needs of the building's occupants, impact on the environment of the site aid its locality and numerous other criteria.
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 the 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. 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, aesthetic, energy and legal requirements in order to resolve the design and site plan problem after having been tested on these same requirements in written form in the initial portion of the examination administered in December of each year.
The grading of the site and design 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 some twenty 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 submitted by applicants, including the Petitioner, on 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, and the evaluation criteria set forth in the grading sheet (Respondent's Exhibit C).
The graders are instructed to note areas of strength and of weakness in an applicant's solution with regard to the grading criteria and then determine,
based upon 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 3 or 4 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 to the problem in order to pass the relevant portion of the exam.
The Petitioner herein received two failing grades and one passing grade. The Petitioner demonstrated an effort to comply with the instructions set forth in the examination, as well as the pre-examination booklet. He failed however, 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 Arnold Butt, Chairman of the Department of Architecture at the University of Florida, and architect Robert Yarbro, both graders of the Petitioner's examination, establishes that the Petitioner failed to supply sufficient information to permit a passing score to be awarded based upon 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. He failed to make adequate provision for exits from the second floor of his structure. Indeed one grader, with a serious consideration to the consequences of a fire in the structure indicated that this single deficiency, standing alone, would justify a failing grade. Further, the lack of a second stairway from the second floor failed to meet the extent building code requirements. The Petitioner also failed to so orient the building on the construction site that adequate provision for prevailing temperatures and solar angles in the area could be accomplished for the purpose of conserving energy. The site in question, which was the identical site all applicants for the exam were required to consider and respond to, is located in the central United States (Indiana) where the prevailing concern for energy conservation is for heating in the winter season as opposed to cooling in the summer. A substantially greater number of days each year require heating of a structure in this locality instead of cooling. The Petitioner, however, oriented the building in such a way as to maximize cooling in the summer, but which would minimize solar heating, which is the reverse of the proper practice for that locality and the practice required in the instructions to the examination. The Petitioner's Exhibit One shows solar angles for that locality of the earth by latitude and is used by the Petitioner in an attempt to justify his placing of the great majority of the window area on the northern portion of the building, and indeed the Petitioner testified that this was done because that portion of the building received no direct sunlight. This testimony bears out the fact that, even at the hearing, the Petitioner apparently did not understand that in this locale and climate, use of solar energy for heating the building was the primary and relevant consideration rather than the avoidance of solar energy's detrimental effect on cooling of the building.
The Petitioner further failed to make adequate provision for parking, especially with regard to the turning radius of vehicles and their ability to make ingress and egress from the parking spaces he designed, two of which were shown to be entirely unusable. Additionally, the Petitioner had an excessive grade within the parking lot and a 25 percent grade on the exit from the parking lot which was shown to be extremely excessive in view of prevailing winter weather conditions involving snow and ice and consequent safety hazards to persons and vehicles using the site.
In his solution to the portion of the problem involving accommodating the site to the proposed structure, the Petitioner accomplished leveling the site by packing fill dirt around the southern border which resulted in an unfeasible gradient in the southern parking lot, and more importantly, the Petitioner used wooden railroad crossties to buttress and support a vertical six foot embankment of filled earth behind which would be placed a large volume of fill in violation of sound architectural principles. Professor Butt established that this would be an extremely dangerous condition in light of the drainage conditions that would prevail on the southern portion of the building site and that should such a six foot embankment be required as a result of such filling, that the minimum support should be a structural steel bulkhead or wall. Further deficiencies were described by the graders who were expert witnesses in addition to the deficiencies upon which the failing grade was based.
The testimony of the witnesses that the failure to include the required second exit from the second floor was sufficient to justify a failing grade standing alone was not refuted by the Petitioner and his only justification for that deficiency in the design was that he felt occupants of the second floor, in case of fire, could make their escape by climbing out windows on to the roof of the first story of the building. Further, the Petitioner acknowledged that the grade of approach into or out of the parking area consisting of a four foot pitch in six horizontal feet is an excessive gradient and merely opined that there were only twelve hours to resolve the design problem and that in an actual project such as this that kind of problem would be ironed out later in the construction stage. That contention, however, does not constitute justification for departure from the requirements and instructions of the examination in this regard. Finally, witness Butt established that the Petitioner's failure to give due regard to one of the major design criteria, adjustment of the building to the construction site, engendered some of the other deficiencies resulting in the failing grade, especially the resulting significant problem involving the excessive grade in the parking lot and the resulting excessive and dangerous fill and retaining wall on the southern portion of the site.
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 reflects sufficient and appropriate consideration of the requirements and criteria he was instructed to address.
CONCLUSIONS OF LAW
The passage of an examination 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 Section 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.
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 applicant. Unless prohibited or limited by rule implementing security or access guidelines of national examinations, the applicant is entitled to review his examination questions, answers, papers, grades and grading key. An applicant may waive in writing the confidentiality of his examination grades.
The examination in question and the 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 Hankes vs. Fisher, 314 F. Supp. 101 (W.D. Mass. 1977), aff'd 91 Supreme Court 462, 400 U.S. 985, 27 L.Ed. 2d 436 (1972).
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 vs. Bowman, 91 So.2d 795 (Fla. 1957). All reasonable presumptions should be indulged in favor of the validity of the agency's actions. Varholy vs. Sweat, 15 So.2d 267 (Fla. 1953)
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 had failed to supply certain material information 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 design criteria and considerations required, and his solution to the examination problems, renders the conclusion inescapable that the determination by the examination graders that the Respondent failed to adequately and successfully complete the site and design portion of the architectural examination should be upheld.
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 the Petitioner's examination. In State ex rel I. H. Topp vs. Board of Electrical Examiners in Jacksonville Beach, 101 so.2d 583 (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 condition exists is not alone sufficient cause upon 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. (Emphasis supplied)
Under such circumstance 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.
Accordingly, based upon the testimony of the Respondent's two 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 Petitioner's grade, and the grading procedure by which it was arrived at, 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 passage of the site and design portion of the Architectural Examination.
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 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 10th day of April, 1981 in Tallahassee, Leon County, Florida.
P. MICHAEL RUFF Hearing Officer
Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 1981.
John F. Binkley
Port St. Lucie, Florida 33452
