STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

DEBORAH MARTOHUE, )

)

Petitioner, )

)

vs. ) CASE NO. 90-1567

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF LANDSCAPE ) ARCHITECTURE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on July 19, 1990, in Orlando, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Deborah Martohue, pro se

1315 Margate Avenue Orlando, Florida

For Respondent: Vytas J. Urba, Esquire

Staff Attorney

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida

STATEMENT OF THE ISSUES

Whether Petitioner should be granted sufficient additional credit for exam factors which would be sufficient to receive a passing grade on the design implementation portion of the June 1989 landscape architecture examination.

PRELIMINARY STATEMENT

This matter arose in the Fall of 1989 when Respondent issued a written notice advising Petitioner that she had failed to pass Section 4, the design implementation section, of the Landscape Architecture Examination given in June 1989. Petitioner had previously passed Section 1-3 at the June 1988 examination. By letter dated February 19, 1990, Petitioner requested a formal hearing to contest her examination score. On March 7, 1990, the Respondent forwarded the request to the Division of Administrative Hearings for a hearing as provided by Section 120.57(1), Florida Statutes. This matter was originally set for hearing

on May 23, 1990, but was continued on the motion of the Respondent to July 19, 1990. Subsequently, this case was transferred to the below signed Hearing Officer who conducted the hearing.

At final hearing, Petitioner testified on her own behalf and offered two exhibits, both blue prints of Petitioner's test results. Respondent presented the testimony of Charles Michael Oliver, a landscape architect and Master Examiner for the Board, and Fae E. Hartsfield, Examination Development Specialist, Bureau of Examination Services within the Department, and offered two exhibits in evidence, the examination and evaluation guide and a summary of the challenged factors.

The transcript was filed on August 6, 1990. Respondent filed a proposed recommended order on August 17, 1990. Petitioner has not filed proposed findings as of the date of this order. However, on August 10, 1990 Petitioner filed with the Clerk of the Division additional documentation in support of her position, which she requested be considered. However, Respondent has objected to the attempted introduction of new evidence post- hearing. At the time of the formal hearing, Petitioner, did not request permission to submit new evidence post- hearing and the Hearing Officer did not so authorize. Therefore, Petitioner's post-hearing submission has not been considered. Respondent's proposals have been considered and incorporated where appropriate. My specific rulings on the proposed findings of fact are ruled upon in the Appendix attached hereto.

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

FINDINGS OF FACT

1. In June 1989, Petitioner, Deborah Martohue, was an examinee on Section 4, Parts A and B, of the Uniform National Examination for Landscape Architects. She had previously passed Sections 1, 2, 3, and 5 in the June 1988 examination. The test is administered by the Office of Examination Services of the Department of Professional Regulation. Licensure is granted by Respondent, Board of Landscape Architects.

   
   

2. The examination in question is a uniform multi-state examination adopted for use in Florida. The questions are prepared by the Council of Landscape Architectural Registration Boards. The same organization also prepares a comprehensive Evaluation Guide for use by graders in scoring the subjective portions of the test. All Florida graders must be professional landscape architects with at least five years experience. In addition, they are given training by the Office of Examination Services before grading the examination. Prior to the administration of the exam, master graders from all

   43 states who use the exam meet and critique both the examination questions and the evaluation guide to insure uniformity.

   
   

3. By notice, Petitioner was advised by the Office of Examination Services that she had received a failing scaled score of 64.8158 on Section 4, Design Implementation, of the examination. A minimum scaled score of 74.5 is required for a passing grade.

4. On October 30, 1989, Petitioner reviewed her examination and using the evaluation guide, disputed 25 points concerning the scoring on Section 4 of the examination. As a result of Petitioner's concerns, the Board assigned a new person to regrade her examination. As a result Petitioner's overall scaled score was raised form 64.8158 to 73.1489. This was still short of the 74.5 needed for passing. After being given the results of the second grading, Petitioner requested a formal hearing.

   
   

5. At the hearing, Petitioner objected to the scores received on Section 4A, Factors 2 and 3, out of a total of four factors, and Section 4B, Factors 1,3,4,5, and 6, out of a total of nine factors, of the examination. It is Petitioner's position that the graders had used subjective standards in evaluating her solutions to the problems, and that they had failed to take a sufficient amount of time to evaluate her answers. In addition, Petitioner contended that the examiners had failed to note a number of correct answers for which she was not given credit. Other than her own testimony, Petitioner did not present any other competent evidence to support her contentions.

   
   

6. In support of its position, Respondent presented the testimony of C. Michael Oliver, a longtime registered landscape architect and master grader with five years experience in grading this type of examination. In preparation for the hearing, Oliver reviewed the examination, instruction booklet, and grader's Evaluation Guide. He then regraded Petitioner's examination and assigned it a scaled score of 70.3712, which was a failing grade. In doing so, Oliver assigned higher scores than did the previous two graders to certain questions, but lower scores to others for an overall average of 70.3. Through a detailed analysis, Oliver pointed out the infirmities in each of Petitioner's objections and why an overall failing grade was appropriate. It was demonstrated by a preponderance of evidence that, where Petitioner had not received the desired grade, she had prepared unsafe designs, failed to satisfy all criteria, or gave incorrect answers.

   
   

7. The evidence does not support a conclusion that Petitioner's examination was graded arbitrarily or capriciously, or that Respondent failed to conduct the examination fairly, uniformly and in accordance with its own rules and regulations, or that the examination instructions were insufficient and misleading.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1), Florida Statutes (1989).

   
   

9. Under the authority of Chapter 481, Florida Statutes, the Board of Landscape Architecture is charged with the duty to license duly qualified candidates as landscape architects, who meet all of the statutory requirements including successfully passing the required examination. Section 481.311, Florida Statutes.

   
   

10. The Department of Professional Regulation is charged with the duty to administer and grade such examinations. Section 481.309, Florida Statutes, and Chapter 21D-11, Florida Administrative Code.

    
    

11. As an unsuccessful candidate on a professional licensure examination, Petitioner bears the burden of proving by a preponderance of the evidence that the Respondent was arbitrary or capricious in grading her examination, or that

    it failed to conduct the examination fairly, uniformly and in accordance with its own rules and regulations, State ex rel. Topp v. Board of Electrical Examiners, 101 So.2d 583, 586 (Fla. 1st DCA 1958), or that the examination instructions were insufficient and misleading, Alvarez v. Department of Professional Regulation, 458 So.2d 808 (Fla. 1st DCA 1984).

    
    

12. Petitioner has failed to satisfy her burden. The preponderance of the evidence establishes that the test was fairly drawn and administered in accordance with the Board's rules and regulations. It was graded in a impartial manner by qualified examiners who followed the evaluator's guide and their own professional judgment in scoring her examination. This being so, it is concluded that Petitioner's regrade score should not be changed.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered by the Board denying Petitioner's

request to receive a passing grade on Section 4 of the June 1989 landscape

architecture examination.

DONE AND ENTERED this 30th day of August, 1990, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

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 30th day of August, 1990.

APPENDIX TO RECOMMENDED ORDER CASE NO. 90-1567

The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Petitioner did not file proposed findings of fact. Respondent's proposed findings of fact. Accepted in substance: paragraphs 1, 2, 3, 4, 7, 9, 14, 15.

Rejected: paragraphs 5, 6, 8, 10, 11, 12, and 13 (restatement of the testimony or argument)

COPIES FURNISHED:

Deborah Martohue 1315 Margate Avenue

Orlando, FL 32803

Vytas J. Urba, Esquire Senior Attorney

Department of Professional Regulation

Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792

Patricia Ard Executive Director

Landscape Architecture

Department of Professional Regulation Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, FL 32399-0792

Kenneth E. Easley General Counsel

Department of Professional Regulation Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, FL 32399-0792

Docket for Case No: 90-001567

Orders for Case No: 90-001567