STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HARRY ROBERT WRIGHT, )

)

Petitioner, )

)

vs. ) CASE NO. 89-1913

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF )

LANDSCAPE ARCHITECTURE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on July 12, 1989, in Vero Beach, Florida.

APPEARANCES

For Petitioner: Harry Robert Wright, pro se,

Post Office Box 171

Vero Beach Florida 32961

For Respondent: E. Harper Field, Esquire

Department of Professional Regulation Northwood Center, Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

STATEMENT OF THE ISSUES

Whether Petitioner correctly answered one question on the December 1988 Landscape Architecture examination for which he received no credit, and, if so, the relief to which he is entitled.

PRELIMINARY STATEMENT

Petitioner sat for the Landscape Architecture examination in December 1988.

After receiving notification that he had received a failing grade on the examination, he challenged Question Number 14 of Section 6 of the examination.

At the final hearing, Petitioner testified on his own behalf and also presented the testimony of one expert witness. Petitioner introduced one documentary exhibit which was accepted into evidence. Respondent called one expert witness and introduced one documentary exhibit, the examination question, which was accepted into evidence as a sealed exhibit. No other testimony or documentary evidence was presented.

No transcript of the proceedings was filed. At the parties' request, a deadline was established for filing proposed findings of fact or other post- hearing submissions that was more than ten days from the date of the final hearing. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days from the date of the final hearing. Rule 22I-6.031, Florida Administrative Code. Petitioner did not file a post-hearing submission. Respondent submitted a proposed recommended order containing proposed findings of fact and proposed conclusions of law. The proposed findings of fact contained in Respondent's proposed recommended order will be addressed in the appendix to this recommended order.

Because the examination questions are made confidential by Section 455.230, Florida Statutes, the question challenged by the Petitioner will be discussed in general terms.

FINDINGS OF FACT

1. In December, 1988, Petitioner sat for the examination given by Respondent to become certified in Florida as a Landscape Architect.

   
   

2. Petitioner received a failing grade on Section 6, the Florida section of the examination. Petitioner received a score of 73.7 where a score of 75 was necessary to pass Section 6 of the examination.

   
   

3. Following notification that he had failed Section 6 of the examination, Petitioner filed a timely challenge to question 14 of Section 6. Petitioner abandoned all challenges he may have made to other examination questions prior to the hearing.

   
   

4. Question 14 of Section 6 is a multiple choice question. The question requires the applicant to identify certain plants that grow in a described area of Florida. The applicant has four possible answers from which to choose. The four selections contain the common name for each choice and, in parentheses, the formal botanical name for each choice. Only one of the four answers contains the correct response.

   
   

5. The botanical name for each of the choices contained the name of the genus of the plant in Latin. Three of the choices contained, in addition to the genus, the name of the species of the plant in Latin.

   
   

6. The correct answer to question 14 of Section 6 contained a typographical error so that the Latin designation for the species was misspelled. The correct answer correctly spells the common name for the plant and correctly spells the botanical name of the genus of the plant. Even with the misspelling, this remained the correct answer because any of the known species of this particular genus would have been a correct answer and because the other answers were clearly incorrect.

   
   

7. The answer given by Petitioner to question 14 of Section 6 of the examination was an incorrect response.

   
   

8. Respondent gave Petitioner no credit for his answer to question 14 of Section 6 because Petitioner gave the wrong answer to the question.

   CONCLUSIONS OF LAW

   
   

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

   
   

10. Petitioner has the burden of establishing by a preponderance of the evidence that Respondent's decision to allow no credit for question 14 of Section 6 constitutes arbitrary and capricious action. State ex rel. Glasser v.

    J.M. Pepper, et al., 155 So.2d 383 (Fla. 1st DCA 1963). Petitioner has failed to meet that burden.

    
    

11. Section 455.230, Florida Statutes, provides, in pertinent part, as follows:

Notwithstanding any other provision of this chapter, examination questions and answers shall not be subject to discovery, but may be introduced into evidence and considered only in camera in any administrative proceeding under chapter 120. ... In any subsequent administrative hearing the department shall provide challenged examination questions and answers to the hearing officer. Examination questions and answers so provided at the hearing, which are not invalidated, shall be sealed and not open to public inspection.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Respondent, State of Florida, Department of Professional

Regulation, enter a final order which denies Petitioner's challenge to question

14 of Section 6 of the examination. It is further recommended that the examination question filed as an exhibit in this proceeding be sealed.

DONE and ENTERED this 15th day of August, 1989, in Tallahassee, Leon County, Florida

CLAUDE B. ARRINGTON

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of August, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-1913

Respondent's Proposed Findings:

The proposed findings of fact, submitted on behalf of Respondent, are addressed as follows:

1. Addressed in paragraphs 1 - 2.

2. Addressed in paragraph 2.

3. Addressed in paragraph 3.

4. Addressed in paragraph 6.

5. Rejected as being unnecessary to the result reached.

6. Rejected as being subordinate to the conclusions reached.

7. Rejected as being subordinate to the result reached.

8. Addressed in part in paragraph 6. Rejected in part as being recitation of testimony.

9. Rejected as being subordinate to the findings made.

COPIES FURNISHED:

E. Harper Field, Deputy General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Harry Robert Wright Lloyd & Associates, Inc.

Engineers, Architects, Planners and Surveyors 1835 20th Street

Post Office Box 650369

Vero Beach, Florida 32965-0369

Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Patricia Ard, Executive Director Department of Professional Regulation Board of Landscape Architecture

1940 North Monroe Street Tallahassee, Florida 32399-0792

Docket for Case No: 89-001913

Orders for Case No: 89-001913