STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUBHASH C. JETHI, )

)

Petitioner, )

)

v. ) CASE NO. 85-1058

) DEPARTMENT OF PROFESSIONAL ) REGULATION, FLORIDA BOARD OF ) 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 September 16, 1985 in Coral Gables, Florida.

APPEARANCES

For Petitioner: Subhash C. Jethi, pro se

1101 Oriole Avenue

Miami Springs, Florida 33166

For Respondent: John J. Rimes, III, Esquire

Department of Legal Affairs The Capitol, LL04 Tallahassee, Florida 32301

BACKGROUND

This matter arose when petitioner, Subhash C. Jethi, received a notice from respondent, Department of Professional Regulation; Florida Board of Architecture, in September, 1984, advising that he had received a failing grade on Divisions B and C of the national professional architectural examination given in June, 1984.

By letter dated March 20, 1985, petitioner requested a formal hearing to contest his grade. Specifically, he contended

that the grading of Division C was "arbitrary and subjective, rather than based on any identifiable or measurable elements of architectural design as required by the program," and that his solution was a "better one" than the suggested answer. Jethi also contended that he was assigned an improper score on Division B since the only "weak" portion of his answer constituted a mere 40% of the total grade.

The matter was forwarded by respondent to the Division of Administrative Hearings on April 3, 1985, with a request that a hearing officer be assigned to conduct a formal hearing. By notice of hearing dated May 21, 1985, a final hearing was scheduled on July 16, 1985 in Coral Gables, Florida. At the request of respondent, the matter was rescheduled to September 16, 1985 at the same location.

At final hearing petitioner testified on his own behalf and presented the testimony of Miles A. Price, Jr., a registered architect, and offered petitioner's exhibits 1 and 2. Both were received in evidence. Respondent presented the testimony of Professor Arnold Butt, accepted as an expert in grading architect examinations, and offered respondent's exhibits 1-4.

All were received in evidence.

The transcript of hearing was filed on September 26, 1985. Proposed findings or fact and conclusions of law were filed by respondent on October 14, 1985. A ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.

After the request for hearing was filed, but prior to the final hearing, petitioner retook Division B of the examination and received a passing grade. Therefore, the only issue is whether petitioner is entitled to a passing grade on Division C of the national professional architectural examination given in June, 1984.

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

FINDINGS OF FACT

1. Petitioner, Subhash C. Jethi, was a candidate on Division C of the national professional architectural examination given in June, 1984. The test is prepared by the National Council of Architectural Registration Boards (NCARB) and is administered by the Educational Testing Service in

   Berkeley, California. Florida candidates take the national examination pursuant to an agreement between NCARB and respondent, Department of Professional Regulation, Florida Board of Architecture (Board).

   
   

2. The examination consists of nine divisions administered over a four day period. Division C relates to building design and contains one graphic or sketch problem to be solved by the candidate in not more than twelve hours. The purpose of the examination is to require an applicant to prepare a design solution in response to the program submitted by the NCARB. Prior to the examination, the candidate is given a preexamination booklet setting forth the architectural program to be accomplished and the various requirements expected of the candidate to receive a passing grade.

   
   

3. Each graphic solution to Division C is blind graded by three examiners (architects) designated and approved by the NCARB. The examiners are drawn from a pool of architects who have been selected by the various architectural registration boards of some twenty states. They are given training by NCARB prior to the examination to standardize their conceptions of the minimal competence required for a passing grade. Among other things, they are instructed to grade holistically, that is, to review each solution quickly for an overall impression and to score on the basis of that first impression. They do not regrade solutions or analyze specific points of presentation. The examinee is always given the benefit of the doubt in all cases.

   
   

4. Candidates may receive a score ranging from 0 to 4. These numbers represent the following grades: 0-totally blank solution pad (fail) 1-incomplete (or extremely poor

solution)(fail); 2-poor(fail); 3-minimally acceptable (pass): 4- good (pass). In order to pass, a candidate must receive at least two pass grades from the examiners. In Jethi's case, three examiners graded his solution and gave scores of 3, 2 and 2, respectively. Because the first grader gave him a 3, a fourth grader (also known as a coordinating grader) independently reviewed his examination and assigned a score of

1. Therefore, he received an overall score of 2 which is a failing grade. This proceeding arose as the result of Jethi's request for an administrative hearing to contest that grade.

   
   

   1. Jethi's solution to Division C was introduced into evidence as respondent's exhibit 2. In support of his claim that he was entitled to a passing grade, Jethi presented the

      testimony of a registered architect, Miles A. Price, Jr., who reviewed Jethi's solution and found it to be acceptable and consistent with the requirements of the problem. However, Price had no experience in grading the national examination, and his comments were given in the context of a practicing architect rather than as a grader. Petitioner also offered a letter from an architect essentially adopting the position of Price. Jethi testified at length on his own behalf, and basically disagreed with most of the criticisms given by the examiners. He also attempted to show that his solution was better in certain respects than a sample solution to the problem which was deemed to be minimally acceptable for a passing grade.

      
      

   2. Respondent presented the testimony of Professor Arnold Butt, who was accepted as an expert in grading architectural examinations. Professor Butt was chairman of the University of Florida department of architecture for some fourteen years, has graded the examination in question since 1970, and is presently the chairman of the master jurors committee which performs the fourth grading on these examinations when required. His testimony is deemed to be more credible and persuasive than that presented by petitioner, and is hereby accepted as dispositive of the issue of whether petitioner's solution to Division C should receive a passing score. In this regard it is noteworthy that three of the four graders reviewing petitioner's examination, including Professor Butt, found the examination to be below the minimum requirements.

      
      

   3. On this particular examination, Division C required candidates to design a two-story architectural pavilion for a world's fair site in Chicago, Illinois. The candidates were specifically told the structure was to be an "architectural gem" and was to take maximum advantage of a scenic overlook of Chicago's downtown loop area.

      
      

   4. The primary deficiency in petitioner's solution was his failure to make maximum use in his design of the scenic overlook relating to Chicago's loop area as required by the problem. In addition, his solutions as to the location of service access, book store and restrooms, structural system, pedestrian circulation, and building site were shown to be deficient.

      Taken as a whole, they rendered his solution to Division C less than minimally acceptable for passing. Therefore, the overall score of 2 should not be changed.

      
      

      CONCLUSIONS OF LAW

   5. The Division of Administrative Hearings has jurisdiction of-the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

      
      

   6. Subsection 481.213(2), Florida Statutes, provides that:

      
      

      (2) The Board shall certify for licensure any applicant who satisfies the requirements of ss .481 209 and 481.211.

      
      

      Section 481.209, Florida Statutes, requires persons desiring to be licensed as a registered architect to take the licensure examination. Rule 21B-14.01(2), Florida Administrative Code, requires all applicants for licensure "to take and pass a professional architectural examination." It is the grade received on this examination that is in dispute.

      
      

   7. Petitioner carries the burden of proving that the grade in issue was arbitrarily or capriciously given by the examining agency. State ex rel Glasser v. Pepper, 155 So. 2d

      383 (Fla. 1st DCA 1963). In his request for a hearing, he has alleged that the grading of his solution was "arbitrary and subjective," that his solution "meets most of the program requirements," and is "better" in certain respects than a sample solution distributed to graders prior to the examination.

      
      

   8. It is clear that petitioner is simply arguing that, in his judgment, the solution was entitled to a passing grade even though three independent graders concluded differently. The case of State ex rel I.H. Topp v. Board of Electrical Examiners in Jacksonville Beach, 101 So. 2d 583 (Fla. 1st DCA 1958) is significant for it addressed a similar ground raised in an examination challenge almost thirty years ago. There the Court held:

      
      

      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.

      
      

      Id. at 586. This principle has been adopted and followed in a long line of agency decisions cited in respondent's proposed order, and said citations need not be repeated herein.

      
      

   9. There being no showing that the examination was graded in an arbitrary or capricious manner, or that petitioner's examination was graded differently from other candidates, the petition to have the grade changed from failing to passing must be denied. State ex rel Glasser; In re Corda (Fla. Board of Architecture, Final Order entered September 28, 1982).

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that petitioner's failing grade received on Division C of the June, 1984 national architectural examination not be changed.

DONE and ENTERED this 22nd day of October, 1985, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 22 day of October, 1985.

APPENDIX*

1. Proposed findings 1 through 7 have been essentially incorporated in the findings of this Recommended Order.

*Petitioner did not file proposed findings of fact.

COPIES FURNISHED:

Mr. Subhash C. Jethi 1101 Oriole Avenue

Miami Springs, FL 33166

John J. Rimes, III, Esq. The Capitol, LL04 Tallahassee, FL 32301

Docket for Case No: 85-001058

Orders for Case No: 85-001058