STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JORGE L. GARCIA, )

)

Petitioner, )

)

vs. ) CASE NO. 90-0006

) DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF )

ARCHITECTURE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on March 13, 1990, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jorge L. Garcia

2859 Birch Avenue, #9 Coconut Grove, Florida 33133

For Respondent: D. Harper Field, Esquire

Deputy General Counsel

Department of Professional Regulation Northwood Centre, Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

STATEMENT OF THE ISSUES

The ultimate issue in the instant case is whether Petitioner's challenge to the failing grade he received on the Building Design section of the June, 1989, architecture licensure examination should be sustained.

PRELIMINARY STATEMENT

By letter dated December 20, 1989, Petitioner requested a formal hearing on his challenge to the failing grade he received on the Building Design section of the licensure examination administered in June, 1989. The matter was referred to the Division of Administrative Hearings on January 2, 1990, for the assignment of a Hearing Officer.

At hearing, two witnesses testified: Petitioner and Arnold Butt, an experienced architect and academician who was retained by Respondent to give expert testimony in this matter. Butt participated as a juror in the grading of solutions submitted by candidates taking the Building Design section of the

June, 1989, licensure examination, but was not among the jurors who graded Petitioner's drawings. In addition to the testimony of Petitioner and Butt, five exhibits were offered and received into evidence.

Following the conclusion of the evidentiary portion of the hearing, the Hearing Officer announced that post-hearing submittals had to be filed no later than ten days following the Hearing Officer's receipt of the transcript of the hearing. The Hearing Officer received a copy of the hearing transcript on April 4, 1990. On April 9, 1990, Respondent filed its Proposed Recommended Order.

The findings of fact proposed in this post- hearing submittal have been carefully considered and are specifically addressed in the Appendix to this Recommended Order. To date, Petitioner has not filed any post-hearing submittal.

FINDINGS OF FACT

Based upon the record evidence, the Hearing Officer makes the following Findings of Fact:

1. The architecture licensure examination utilized by the Department of Professional Regulation is a national examination prepared by the National Council of Architectural Registration Boards (NCARB).

   
   

2. In June, 1989, Petitioner took the Building Design section of this licensure examination, which was the only section of the examination he had not previously passed. A candidate must pass all sections of the examination to qualify for licensure.

   
   

3. The Building Design section of the examination is a practical test. Candidates are given a test booklet which contains a description of the environmental and programmatic requirements for a hypothetical building and site and then directs the candidates to "synthesize this information into a coherent, aesthetic concept for the building and site and to graphically convey [their] solution in the required drawings." The required drawings must be completed within twelve hours.

   
   

4. Because of its length, this portion of the examination can be physically demanding. Moreover it is typically difficult to pass. Normally only 35-40% of the candidates receive a passing grade on this section of the examination. 1/

   
   

5. The candidates' solutions are graded by jurors who are selected in accordance with guidelines developed by NCARB. Jurors must have a minimum of five years experience as a licensed architect.

   
   

6. Jurors gather at regional sites throughout the country where they grade the solutions over a two and a half to three day period. Each juror is furnished with a NCARB Jurors' Manual in advance of the grading session. The manual provides detailed information regarding the standards and criteria the jurors are expected to apply in evaluating the drawings submitted by the candidates. The jurors also receive training and instruction regarding the grading process at the grading site before they begin grading the candidates' solutions.

   
   

7. The training and instruction are provided by master jurors, who have considerable experience in grading this portion of the examination. Each master juror oversees approximately eight to ten jurors. A master juror will not permit a juror under his or her supervision to commence grading until he or she

   is satisfied that the juror understands the grading process and will reasonably apply the requisite standards and criteria in evaluating the candidates' drawings.

   
   

8. The master juror's supervisory responsibilities with respect to a juror do not end when the decision is made to allow the juror to begin grading. The master juror regularly monitors the grades given by the juror. If the juror's grades are on the average markedly higher or lower than the grades given by the other jurors, the juror will be counseled by the master juror.

   
   

9. Jurors are reminded throughout the grading session that, in grading the candidates' work, they should take into consideration that the candidates merely need to demonstrate that they can perform "at minimum level capability" and that the candidates had only 12 hours to prepare their drawings.

   
   

10. Test solutions are randomly distributed to the jurors for grading. The jurors are unaware of the identities of the candidates whose drawings they are evaluating. Generally, jurors spend approximately three to five minutes reviewing a candidate's drawings before deciding on the grade to give the candidate. This is a sufficient amount of time to evaluate the candidate's work. After coming to a decision on the matter, the grade is recorded on a score sheet and entered in a computer.

    
    

11. The juror must assign one of the following five numeric grades to each set of drawings he or she reviews: 0 (when the candidate submits blank pieces of paper); 1 (very poor); 2 (unacceptable); 3 (acceptable); and 4 (very good). The latter two grades are passing grades. The remaining grades are failing grades. The grade given is intended to reflect the juror's assessment of the candidate's entire work product on this portion of the examination. In addition to assigning one of the foregoing numeric grades, the juror is required to check the appropriate box on the score sheet to indicate "up to three areas of weakness" if he or she has assigned a failing grade.

    
    

12. Each candidate's drawings are graded by a least two different jurors,. They assign grades without knowing what grade the other juror has given. If the candidate receives a grade of 3 or 4 from both jurors, he or she passes. If the candidate receives a grade of 0 or 1 from both jurors, he or she fails. If the candidate receives any other combination of grades, a third juror will review and grade the candidate's drawings. If the third juror assigns a grade of 3 or

    4 and one of the other juror's had also assigned a grade of 3 or 4, the candidate passes. If the third juror assigns a grade of 0, 1 or 2 and one of the other jurors had also assigned a grade of 0, 1 or 2, the candidate fails, unless his or her three grades are 1/2/3, 2/3/2, 2/4/2 or 2/2/3. Under such circumstances, the candidate's work product will be reviewed and graded by a master juror. If the master juror assigns a grade of 3 or 4, the candidate passes. If the master juror assigns a grade of 0, 1 or 2, the candidate fails.

    
    

13. The Building Design section of the June, 1989, examination involved the design of a two-story religious life center on a college campus located in Kalamazoo, Michigan. The test booklet that Petitioner and the other candidates received upon their arrival at the testing location described in a clear and concise manner the environmental and programmatic requirements of the project, as well as the type of drawings that had to be produced, to wit: an upper level floor plan/site, lower level floor plan, east elevation and building section.

    In addition, the booklet gave notice that these drawings would be evaluated in accordance with the following grading criteria:

    Your solution will be graded based on the following categories. To pass this examination, a solution must be at least minimally acceptable in every major category.

    1. Program Requirements

       1. Development of All Programmed Spaces

       2. Conformance to Square Footage Requirements

       3. Compliance with Required Spatial Relationships

    2. Design Logic

       1. Circulation

       2. Spatial Relationships/Proportions/ Adjacencies

       3. Compatibility to Existing Context

    3. Code Compliance

       1. Fire Wall Separations

       2. Means of Egress

       3. Handicapped Accessibility Requirements

    4. Technical Aspects

       1. Material Selection and Wall, Floor and Roof Assemblies

       2. Structural Systems, their Appropriateness and Integration

       3. Mechanical Systems

    5. Completeness and clarity of Presentation, Adherence to Test Instructions, or Required Drawing(s) Missing

       
       

       NOTE: Solutions which have a required drawing missing, are unintelligible, or are drawn with the use of color, press- on letters, or transfer drawings, will automatically receive a grade of FAIL.

       
       

14. Petitioner's drawings were reviewed and graded by three jurors and a master juror. He received grades of 2, 3 and 2 from the jurors and a grade of 2 from the master juror. The score sheets submitted by the master juror and the jurors who gave Petitioner a grade of 2 reflect the following: one found Petitioner's drawings to be weak in the areas of design logic-circulation and technical aspects-structural systems 2/; another deemed the drawings to be deficient in the areas of design logic- circulation and code compliance-means of egress; and the third was of the view that the drawings were unacceptable in the area of code compliance-means of egress.

    
    

15. Petitioner's drawings, in fact, were deficient in all of these areas 3/ and he therefore deserved to receive a failing grade on the Building Design section of the June, 1989, licensure examination. 4/

    CONCLUSION$ OF LAW

    
    

16. Any person seeking a license to practice architecture in the State of Florida must apply to the Department of Professional Regulation to take a licensure examination if he or she is not qualified for licensure by endorsement. Section 481.209(1), Fla. Stat.

    
    

17. The licensure examinations given by the Department must "adequately and reliably measure an applicant's ability to practice [architecture.]" Section 455.217(a)(a), Fla. Stat.

    
    

18. The Department must "use professional testing services to prepare, administer, grade and evaluate the examinations, when such services are available and approved by the [B]oard of Architecture." Section 455.217(1)(a), Fla. Stat. The National Council of Architectural Registration Boards (NCARB) offers professional testing services that have been approved by the Board of Architecture by rule. Fla. Admin. Code Rule 21B-14.001. In accordance with the mandate of Section 455.217(1)(a), Florida Statutes, the Department utilizes these services in testing applicants seeking to become licensed architects. NCARB's "testing format . . . recognizes that some subjectivity is inherently part of the examination [grading process]. But the testing system seeks to minimize professional bias of individual graders by a training and testing format which [is designed to produce] fairly uniform results." Harac v. Department of Professional Regulation, Board of Architecture, 484 So.2d 1333, 1337 (Fla. 3d DCA 1986).

    
    

19. An applicant who fails to attain a passing grade on the licensure examination is entitled to an administrative hearing on the matter conducted pursuant to Chapter 120, Florida Statutes. Sections 455.229 and 455.230, Fla. Stat.; Fla. Admin. Code Rule 21-11.012. The burden is on the applicant to establish by a preponderance of the evidence that his examination was erroneously graded. See Harac v. Department of Professional Regulation, Board of Architecture, 484 So.2d 1333, 1338 (Fla. 3d DCA 1986)("Ordinarily one who fails a licensure examination would shoulder a heavy burden in proving that a subjective evaluation by an expert is arbitrary"); Florida Department of Health and Rehabilitative Services v. Career Service Commission 289 So.2d 412, 414 (Fla. 4th DCA 1974)("the burden of proof is on the party asserting the affirmative on an issue before an administrative tribunal"').

    
    

20. The proof Petitioner submitted at hearing was insufficient to satisfy this burden of proof. Indeed, the preponderance of the record evidence establishes that the failing grade Petitioner received on the Building Design section of the June, 1989, licensure examination was warranted.

    
    

21. In addition to alleging that he should have been given a passing grade on this portion of the examination, Petitioner also advanced the following claims in his petition for an administrative hearing filed in the instant case:

    
    

    1) the exam was graded improperly

    1. insufficient time was allotted for the proper grading of the exam by jurors.

    2. a subjective process is used to grade the exam.

    3. see additional specific items below.

    * * *

    1. the grading process is unfair

       1. confidentiality of previous jurors grades are not kept from subsequent jurors.

       2. confidentiality of test taker's probable nationality, etc. is not maintained.

       3. the ETS was contracted by the State of Florida without proper bidding procedures. 5/

       4. non-subjective grading is a prerequisite for fair grading and was not provided.

    2. The Dept. of Professional Regulation has allowed a campaign by private interests to influence the grading and licensure of architect candidates.

    1. The American Institute of Architects has acted on a campaign to increase architect's compensation by limiting the number of professionals licensed by the Department of Professional Regulation.

    2. This influenced the grading of the exam and licensure of architects in Florida.

    3. No non-A1A member architects are state board members and A1A membership is a de facto requirement.

    4. The attempts to limit the number of architects to be licensed comes at a time when large numbers of women and minority applicants are applying for licensure.

    d. Mr. Garcia is a minority applicant and was substantially affected.

    
    

22. Petitioner's claim that "a subjective process is used to grade the exam" finds support in the record. That subjectivity plays some role in the grading process, however, is not, standing alone, a basis upon which to overturn the results of a licensure examination. To prevail, an unsuccessful applicant must also show that those who subjectively evaluated his or her examination acted arbitrarily or without reason or logic in giving him or her a failing grade. See Harac v. Department of Professional Regulation, Board Qf Architecture, 484 So.2d 1333, 1337 (Fla. 3d DCA 1986); State v. Board of Electrical Examiners for Jacksonville Beach, 101 So.2d 583, 586 (Fla. 1st DCA 1958). No such showing was made in the instant case.

    
    

23. The remaining allegations made in paragraphs 1, 3 and 4 of Petitioner's petition are not supported by any persuasive competent substantial evidence. Accordingly, these allegations are also without merit.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Board of Architecture reject Petitioner's challenge to the failing grade he received on the Building Design section of the June, 1989, architecture licensure examination.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th day of April, 1990.

STUART M. LERNER

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 17th day of April, 1990.

ENDNOTES

1/ There has been no showing that women or minority candidates, as a group, fare any worse on this portion of the examination than do other candidates.

2/ The information booklet received by Petitioner and the other candidates taking this section of the licensure examination gave the following instructions regarding structural system requirements:

Show building columns and designate bearing walls to clearly demonstrate your understanding of the required structural system. Graphically indicate column grids on both floor plans.

Foundation systems shall be shown on the Section and elevation.

3/ Perhaps the most glaring deficiency in Petitioner's design of the project was the narrow, four foot corridor he place outside three seminar rooms having a total capacity of 120 people.

4/ In making this determination, the Hearing Officer has relied upon the expert testimony of Arnold Butt. Petitioner did not present any testimony, other than his own self-serving testimony, to rebut Butts' testimony that Petitioner's failing grade on this section of the examination was warranted.

5/ Although the record is not entirely clear on this point, it appears that ETS (Educational Testing Service) plays a role in the tabulation of test results.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-0006

The following are the Hearing Officer's specific rulings on the findings of fact proposed by Respondent:

1. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommende1d Order.

   
   

2. To the extent that it asserts that Petitioner had failed the Building Design section of the licensure examination "on at least five other occasions prior to the examination in question," this proposed finding has been rejected because it adds only unnecessary detail. In all other respects, it has been accepted and incorporated in substance.

3-14. Accepted and incorporated in substance.

1. Rejected because it is more in the nature of a summary of the record evidence and argument than a finding of fact based upon the record evidence.

   
   

2. Rejected because it is more in the nature of legal argument than a finding of fact.

17-18. Rejected because they add only unnecessary detail.

19-21. Rejected because they are more in the nature of summaries of testimony than findings of fact based on such testimony.

22. Accepted and incorporated in substance.

COPIES FURNISHED:

Jorge L. Garcia

2859 Bird Avenue, #9

Coconut Grove, Florida 33133

E. Harper Field, Esquire Deputy General Counsel

Department of Professional Regulation Northwood Centre, Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

Patricia Ard Executive Director

Board of Architecture and Interior Design Department of Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Docket for Case No: 90-000006

Orders for Case No: 90-000006