STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JORGE L. GARCIA, )

)

Petitioner, )

)

vs. ) CASE NO. 86-2195

) DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF )

ARCHITECTURE, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, final formal hearing was held in this cause on February 18, 1987, in Miami, Florida, before Ella Jane P. Davis, the duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jorge L. Garcia, pro se

1744 Southwest First Avenue Miami, Florida 33134

and

231 Southwest 52nd Avenue Miami, Florida 33134

For Respondent: John Rimes, Esquire

Department of Legal Affairs The Capitol, LL04

Tallahassee, Florida 32399-1050 BACKGROUND

Petitioner offered the oral testimony of Arnold Butt and himself. Petitioner offered 10 exhibits, 9 of which were admitted in evidence.

Respondent also offered the oral testimony of Arnold Butt. Respondent offered 5 exhibits, all of which were admitted in evidence. Respondent filed a transcript and the parties timely submitted posthearing proposed recommended orders, the proposed findings of fact of which have been ruled upon in the appendix hereto pursuant to Section 120.59(2), Florida Statutes. By agreement, Respondent was permitted to attach to its proposals a copy of Chapter 21-B, Florida Administrative Code.

FINDINGS OF FACT

1. Petitioner, Jorge L. Garcia, is an applicant for licensure by examination to practice architecture in the State of Florida. The architecture examination in the State of Florida is of seven parts, part of which is the

   written examination and the rest of which is a site and design examination, which is given in June of each year.

   
   

2. Petitioner took the building design portion of the Architecture Registration Examination in June, 1985. This portion of the examination consists of a 12-hour sketch problem involving building design considerations. 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 of the jurisdictions of the United States by the National Council of Architectural Registration Boards (NCARB). The examination itself involves the design of a structure by an applicant which meets specific requirements for placing the structure on the site, elevations, building cross- sections, facades, and floor plans.

   
   

3. The program for the 1985 examination called for the design of a city administration building.

   
   

4. Information supplied to the applicant includes a pre-examination booklet setting forth the architectural program to be accomplished and the various requirements to which the applicant is expected to apply himself in order to receive a passing grade.

   
   

5. Applicants also may study a series of solutions proposed by previous successful and unsuccessful applicants so that they may anticipate and apply successful solutions when taking their own examination.

   
   

6. At the time of the examination itself, other information is supplied to the applicant to enable him to more adequately design the structure requested and perform the necessary technical architectural requirements. In general, the purpose of the examination is to require the applicant to put together a building design solution in response to a program submitted to him by NCARB. This portion of the examination therefore, allows the national testing service grading the examination, and through it, the Florida Board of Architecture, to determine whether the applicant is able to coordinate the various structural, design, technical, aesthetic, energy, and legal requirements.

   
   

7. The grading of the building design problem is accomplished by the review of the applicant's proposed examination solution by at least three architects selected by the various architectural registration boards of some 20 states who are then given training by NCARB to standardize their conceptions of the minimal competency required for a passing grade. Each architecture grader is then asked to review various solutions by applicants on a blind grading basis. That is, the grader has no knowledge of the name or state of origin of the applicant whose examination solution he is grading. The grader is instructed to take into consideration various criteria as set forth in Rule - 21B-14.03, Florida Administrative Code. Graders are instructed to make notations or areas of strength and of weakness on the grading criteria and then to determine, based upon an overall conception of each applicant's submission, whether or not a passing grade of 3 or 4 as set forth in Rule 21B-14.04, Florida Administrative Code, has been earned. A method used to ensure independent and confidential grading of a solution is the folding of a single score sheet in such a way as to not allow subsequent graders to see the previous score. Approximately 3 and one-half minutes is utilized as the time in which each grader has to grade each applicant's exam.

   
   

8. Page 7 of the Juror's Manual (graders manual) points out:

   Examinees are entitled to make some mistakes. The program analysis, design , development and drafting are

   hurriedly executed in a tense situation, without recourse to normal office reference materials (Sweets catalogs Architectural Graphic Standards, etc.) and without customary time for deliberation and critique by others.

   
   

9. Jurors (graders) are permitted to recommend changes to an applicant's submission to bring it up to passing.

   
   

10. In order for an applicant to pass, he must receive at least two passing grades from the at least three architects who independently grade the applicant's submission. In the instant case, the Petitioner received three 2's (which are failing grades) and one 3 (which is a passing grade). Petitioner's exam solution presented a borderline case since one of the three graders who originally graded his exam gave him a passing grade. His response to notification of failure to pass this portion of the exam was a timely request for a Section 120.57(1) hearing and this proceeding ensued.

    
    

11. While Petitioner attempted to comply with the instructions as set forth in the examination and pre-examination booklets, it is clear that in several material areas he failed to achieve requisite minimal competency necessary to receive a passing score on the examination. The testimony of Arnold Butt, Registered Architect, former chairman of the Department of Architecture at the University of Florida and a master grader in the building design examination, is the only expert testimony of record. In Butt's opinion, Petitioner's submission contained several material departures from specific program requirements applicable to the 1985 examination. Specifically, Petitioner failed to place in his submission a delivery system, thus failing to meet program requirements, and showed no method of entry or egress. Further, there was no method of entry or egress from the river walk. Although Butt complimented Petitioner in overcoming one type of circulation problem that was overlooked by many other applicants at the same examination, Petitioner's circulation design was still full of many errors described by Mr. Butt, including life safety factors. Mr. Butt admitted that the graders had not marked life safety as a weakness present in Petitioner's exam. However, Butt's critique of Petitioner's circulation problems shows circulation overlaps into the area of "design logic." For other reasons, including but not limited to Petitioner's showing of certain features such as windows only upon the elevation sheets (as opposed to upon other sheets as well) and failure to show all of an access road, his errors and omissions also overlap into the evaluation criteria of "clarity and completeness of presentation."

    
    

12. While Petitioner attempted to show, through use of the publication of NCARB which contains within it samples of various passing and failing examinations, that his examination submission was similar to those which had been recorded as passing grades, he was unsuccessful in discrediting the overall perception of Butt that there were significant difficulties in Petitioner's design solution which, taken as a whole, were much more numerous than the various solutions (both passing and failing) which were compared with Petitioner's solution. In a review of the sample solutions, Butt conceded that some of the errors that Petitioner made were also made by some of the candidates who achieved passing scores. However, Petitioner's examination submission contained a combination of many errors in one paper, which same errors may have

    existed only individually in some of the passing examples. In short, Petitioner's reliance on the NCARB-produced review booklet is misplaced in that his submitted solution to the problem presented a conglomeration of many of the errors which may have been passing if presented individually in various of the examples contained in the NCARB manual. Petitioner, who has the burden of proof in these de novo proceedings, has therefore failed to demonstrate that his examination solution exhibits minimal competency within the criteria necessary for a passing score.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause.

    
    

14. 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 Sections 481.209 and 481.211.

    
    

15. The examination in question and the grading criteria contained therein has previously been upheld. See Henkes v. Fisher, 314 F. Supp. 101 (W.D.

    Mass., 1970), Aff-d. 91 S. Ct. 462, 400 US 985 27 L.Ed.2d 436 (1972).

    
    

16. In the absence of a clear showing of abuse of discretion or violation of law, agency actions may be presumed 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). Petitioner failed to carry the burden necessary to show that an error was made in the determination of his grade. Contrariwise, testimony clearly showed that Petitioner failed to demonstrate minimal competency in the evaluation criteria of circulation, design logic, and clarity and completeness of presentation for the building design portion of the architectural examination.

    
    

17. That reasonable men might differ regarding the completeness of an examination, is not sufficient to support a determination that an error on the part of Respondent in grading Petitioner's examination has been made. See State ex rel. I. H. Topp v. Board of Electrical Examiners in Jacksonville Beach, 101 So.2d 583 (4th DCA 1958), wherein 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 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 for 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 a 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. [Emphasis supplied.]

    
    

18. Based upon the foregoing findings of fact and conclusions of law, Petitioner's failing grade is both consistent with the rules of the Florida Board of Architecture and with the standards set forth in NCARB as necessary to pass the site and design portion of the architecture examination.

RECOMMENDATION

Therefore, it is,

RECOMMENDED that the Board of Architecture enter a Final Order affirming that Petitioner has failed the licensure examination for 1985.

DONE and RECOMMENDED this 12th day of June, 1987, at Tallahassee, Florida.

ELLA JANE P. DAVIS

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 12th day of June, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2195

The following constitute rulings pursuant to Section 120.59(2), Florida Statutes, upon the parties' respective proposed findings of fact (FOF).

Petitioner's Proposed Findings of Fact:

1-2. Covered in Recommended Order FOF 1-3. 3-4. Covered in FOF 10.

5-7. Those portions not accepted are rejected as not supported by the greater weight of the competent substantial evidence as a whole as set forth in FOF

11-12. Further, Mr. Butt testified that once the Petitioner's solutions to the problem were utilized, it was probable the graders would not give him the

benefit of the doubt to recommend changes to his submitted because any reasonable solutions they might propose would require almost total redesign of his proposed building instead of the minimal changes they might be permitted to recommend.

1. Rejected as not supported by the competent substantial evidence as covered in FOF 7. Three and 1/2 minutes was given as a fair estimate of the time actually used, not the time permitted.

2. Covered in FOF 9; see also ruling on proposals 5-7 above.

3. Covered in FOF 10; see also ruling on proposals 5-7 above.

4. Accepted but immaterial and not dispositive of any issue at bar. The graders were not precluded from making more than three recommended marks.

Respondent's Proposed Findings of Fact:

Covered in FOF 1; that which is rejected is subordinate and unnecessary.

1. Covered in FOE 2.

2. Covered in FOE 4 and 6.

3. Covered in FOF 7 and 10.

4. Covered in FOE 10.

6-7. Covered in FOF 11 and 12 but substantially modified for independent clarity of expression.

COPIES FURNISHED:

Pat Ard, Executive Director DPR-Board of Architecture

130 North Monroe Street Tallahassee, Florida 32399-0750

Jorge L. Garcia

1744 Southwest First Avenue Miami, Florida 33134

Jorge L. Garcia

231 Southwest 52nd Avenue Miami, Florida

John Rimes, Esquire Department of Legal Affairs The Capitol - LL04

Tallahassee, Florida 32399-1050

Joseph A. Sole, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 86-002195

Orders for Case No: 86-002195