STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARL HIGGINS, )

)

Petitioner, )

)

vs. ) CASE NO. 90-7222

)

BOARD OF LANDSCAPE )

ARCHITECTURE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings, on June 12, 1991, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Andrew L. Siegel, Esquire

Executive Pavilion

300 Northwest 82nd Avenue, Suite 412 Plantation, Florida 33324

For Respondent: Arthur R. Wiedinger, Jr.

Assistant Attorney General Department of Legal Affairs Suite 1602, The Capitol Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

The issue for determination in this proceeding is whether Petitioner is entitled to licensure by endorsement as a landscape architect without examination pursuant to Chapter 481, Florida Statutes.

PRELIMINARY STATEMENT

This matter was referred to the Division of Administrative Hearings for assignment of a hearing officer on November 15, 1990, and assigned to hearing officer J. Stephen Menton on November 21, 1990. A formal hearing was scheduled for February 8, 1991, and continued until June 12, 1991.

At the formal hearing, the parties filed a stipulation of facts.

Petitioner testified in his own behalf and submitted three exhibits for admission in evidence. Petitioner's Exhibits 1-3 were admitted in evidence without objection. Respondent called no witnesses and presented no exhibits for admission in evidence.

A transcript of the record of the formal hearing was filed with the undersigned on July 17, 1991. Proposed findings of fact and conclusions of law were timely filed by Respondent on July 31, 1991, and by Petitioner on August 6, 1991. The parties' proposed findings of fact and conclusions of law are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

Background

1. Petitioner has been licensed in the State of Tennessee as a landscape architect since 1973. Petitioner was issued his license in Tennessee without examination and without completing a professional degree program in landscape architecture. Petitioner was issued a license in Tennessee pursuant to a grandfather clause in that state's licensure requirements. On August 29, 1988, Petitioner submitted an application to the State of Florida, Department of Professional Regulation, Board of Architects (the "Department") for licensure by endorsement as a landscape architect.

   
   

2. Respondent denied Petitioner's application for licensure by endorsement on October 17, 1988, but certified Petitioner as eligible to take the written examination for licensure. Petitioner requested a formal hearing on November 9, 1988. The matter was placed on the agenda for the next meeting of the Board of Landscape Architecture (the "Board"). The Board denied Petitioner's application for licensure by endorsement on February 17, 1989. 1/ The Board, however, approved Petitioner to take the written examination as a so-called ". . . six- year candidate." 2/

   
   

3. Petitioner had at least six years of practical experience of a grade and character that was satisfactory to the Board for the purpose of taking the written examination. 3/ The Executive Director of the Board advised Petitioner by letter dated March 28, 1989, that the Board had approved Petitioner to take the examination required in Section 481.309 as a result of Petitioner's experience.

   
   

4. Petitioner sat for and successfully completed the state portion of the examination required in Section 481.309, Florida Statutes. The examination required in Section 481.309 includes both a national portion and a portion concerning ". . . the specialized aspects of the practice of landscape architecture in Florida" (the "state portion" ). 4/ Petitioner requested to be scheduled for the state portion of the examination on April 24, 1989.

   Respondent sent Petitioner an acknowledgement of the request to be scheduled for the state portion of the examination on June 12, 1989. Petitioner achieved a score of 85 on the state portion of the examination. The Department notified Petitioner on January 15, 1990, that he had passed the exam and that his application for licensure had been approved by the Board.

   
   

5. The notice of Petitioner's passing grade required Petitioner to submit a registration fee of $225. Petitioner tendered the required registration fee in accordance with the notice. The Department subsequently returned the registration fee with a letter notifying Petitioner that the Department had made an error. The Department determined that Petitioner had passed only the state portion of the examination.

6. Petitioner did not take the national portion of the examination. The national portion of the examination is prepared by the Council of Landscape Architectural Registration Boards ("CLARB"), is very technical, and is aimed at college graduates with technical training. Petitioner believed that the likelihood of completing the national portion of the examination successfully was not great. Petitioner could not take the oral examination offered by CLARB as an alternative to the national portion of the written examination because CLARB requirements at the time required Petitioner to reside in Tennessee, i.e., the state in which he was licensed.

   
   

7. After the Department returned the registration fee with a letter notifying Petitioner that the Department had made an error, Petitioner again requested an administrative hearing on June 25, 1990, and on August 23, 1990. On October 5, 1990, the Petitioner's request for licensure by endorsement came on to be heard as an agenda item before the Board and, after discussion, was denied. On October 10, 1990, Respondent notified Petitioner that his request

   for licensure without examination was denied and the Petitioner was afforded the right to request an administrative hearing. On October 29, 1990, and on November 1, 1990, through counsel, Petitioner requested a formal administrative hearing.

   
   

   Criteria For Licensure

   
   

8. The criteria for licensure in Florida and Tennessee were not substantially identical when Petitioner was issued his license in Tennessee in 1973. Florida and Tennessee generally required each applicant to demonstrate his or her competency by written examination. 5/ In order to sit for the examination in Florida, an applicant was required to have completed four years of high school and either: have been graduated from a nationally accredited college or university offering an approved curriculum in landscape architecture; or have no less than 11 years of practical experience satisfactory to the Board. Conversely, an applicant could sit for the examination in Tennessee with seven years of practical experience in lieu of a college degree. 6/

   
   

9. Petitioner did not satisfy the requirements for exemption from examination pursuant to the reciprocity provisions in effect in Florida in 1973. The Board was statutorily authorized to exempt an applicant who held a license issued by another state if the out-of-state license was issued upon examination and if the requirements for the out-of-state license were the full equivalent of the requirements in this state at the time the out-of-state license was issued. 7/ Petitioner's license was not issued to him in Tennessee upon examination. For the reasons stated in the preceding paragraph, the requirements for the Tennessee license were not the full equivalent of the requirements in Florida.

   
   

10. Standards prescribed in the grandfather clauses in Florida and Tennessee in 1973 were not substantially identical. Both Florida and Tennessee had statutory provisions in effect in 1973 which exempted applicants in each state from the criteria for licensure if such applicants satisfied the practical experience standards prescribed in the respective statutory provisions ("grandfather clauses"). The grandfather clause in Florida required the applicant to have one year experience and to apply for licensure within six months of the date of enactment of the grandfather clause. The grandfather clause in Tennessee authorized that state's board to license without written examination any applicant who was practicing landscape architecture at the time the Tennessee law was enacted, who had experience satisfactory to the board, and who applied for licensure without examination within one year of the effective date of the Tennessee grandfather clause.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding pursuant to Section 120.57(1), Florida Statutes. The parties were duly noticed for the formal hearing.

    
    

12. The burden of proof in this proceeding is on Petitioner. Petitioner must show by a preponderance of the evidence that he is entitled to licensure by endorsement. The burden of proof in an administrative hearing is on the party asserting the affirmative of the issue unless the burden is otherwise specifically established by statute. Young v. State, Department of Community Affairs, 567 So.2d 2 (Fla. 3rd DCA 1990); Florida Department of Transportation

    v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). The burden of proof in this proceeding is not specifically established by either Chapters 120 or 481, Florida Statutes.

    
    

13. Petitioner failed to satisfy his burden of proof in this proceeding. At the time Petitioner made application for licensure in 1988, Section 481.311, Florida Statutes (Supp. 1988), 8/ provided in relevant part:

    
    

    (3) The board shall certify as qualified for a license by endorsement an applicant who:

    * * *

    (b) Holds a valid license to practice landscape architecture issued by another state or territory of the United States, if the criteria for issuance of such license were substantially identical to the licensure criteria which existed in this state at the time the license was issued.

    
    

14. The criteria for licensure in Florida and Tennessee in 1973 were not substantially identical within the meaning of Section 481.311, Florida Statutes. Both Florida and Tennessee generally required licensure by written examination. 9/ Additional criteria for licensure were statutorily prescribed in both states in the form of minimum qualifications to take the written examination. Neither the requirements which applicants had to satisfy in order to sit for the written examination in each state nor the exceptions from the requirement for written examination were substantially identical.

    
    

    Minimum Qualifications To Take The Written Examination

    
    

15. The minimum qualifications for taking the written examination in Florida and Tennessee in 1973 were not substantially identical. Both Florida and Tennessee required applicants to satisfy either educational requirements or minimum practical experience requirements to sit for the written examination. While the educational requirements in Tennessee were equivalent to or exceeded the educational requirements in Florida, the requirement for practical experience in lieu of the educational requirements in Tennessee required less practical experience than the corresponding requirement in Florida.

16. Section 481.051(4), Florida Statutes (1973), in relevant part, required applicants who wished to sit for the written examination to have either:

    
    

    . . . (d) . . . been graduated from a nationally accredited school, college, or university offering an approved minimum four- year curriculum in landscape architecture appearing on the current list approved by the national commission on

    accrediting, or graduated from the curriculum in landscape architecture at the university (sic) of Florida, evidenced by a diploma setting forth the applicant's degree. [or]

    . . . (e) . . . [presented] evidence of not less than eleven years of actual practical experience in landscape architectural work of a grade and character satisfactory to the board.

    
    

17. The educational qualifications imposed on applicants for the written examination in Tennessee generally exceeded the educational requirements in Florida. An applicant who wished to sit for the written examination in Tennessee was generally required to have both a four year degree from an approved college or school and practical experience. 10/ The practical experience requirements imposed in Tennessee in lieu of the educational requirements were not equivalent to the corresponding requirements imposed in Florida. An applicant in Florida was required to have 11 years of practical experience to take the written examination without satisfying the educational requirements. In Tennessee, Public Acts, Ch. 748, Section 8(c), in relevant part, authorized applicants to sit for the written examination if the applicant had:

    
    

    . . . completed seven (7) years of work in the practice of landscape architecture of a grade and quality satisfactory to the Board. Each year of education completed in a school of landscape architecture approved by the Board shall be considered to be equivalent to one (1) year of such work with a maximum credit of four (4) years. Graduation in a curriculum other than landscape architecture, from a college or university, shall be equivalent to two (2) years experience of

    the (7) specified above in this section; except that no applicant shall receive credit for more than two (2) years experience; or

    . . .

    Exception By Reciprocity

    
    

18. Petitioner did not satisfy the criteria for licensure by reciprocity in Florida in 1973. Section 481.051(7), Florida Statutes (1973), in relevant part, authorized the Board to exempt from examination any applicant who:

    
    

    . . . holds a license . . . issued . . . upon examination by . . . any other state

    . . . provided the requirements for such license or certificate were the full equivalent of the requirements in this state at the time it was issued, and provided further, that the applicant's record fully meets the requirements of this state in all

    respects other than examination. (emphasis added)

    
    

19. Petitioner did not hold a license in Tennessee that was issued upon examination. Petitioner was issued a license in Tennessee without examination pursuant to that state's grandfather clause. 11/ In addition, the requirements for licensure in Tennessee were not the full equivalent of the requirements in this state at the time Petitioner's license was issued in Tennessee. 12/

    
    

    Exception Pursuant To Grandfather Clause

    
    

20. Petitioner is not entitled to licensure in Florida pursuant to the grandfather clause in effect in the state in 1973. Both Florida and Tennessee had grandfather clauses in effect in 1973. Section 481.141, Florida Statutes (1973); Public Acts, Ch. 748, Section 15 (1972). A grandfather clause, however, is not a criteria for licensure within the meaning of Section 481.311(3)(b), Florida Statutes. It is an exception from the criteria for licensure that would apply in the absence of the grandfather clause. Midstate Hauling Co., Inc. v. Mason, 177 So.2d 206, 210 (Fla. 1965); Solomon v. Sanitarians' Registration Board, 155 So.2d 353, 356 (Fla. 1963); Eslin v. Collins, 108 So.2d 889, 890-891 (Fla. 1959); Cowart v. Kalif, 123 So.2d 468, 470 (Fla. 3d DCA 1960).

    
    

21. While grandfather clauses generally are not construed as criteria for licensure, grandfather clauses typically include less strict standards to be applied to those seeking licensure pursuant to a particular grandfather clause. Anderson v. Department of Professional Regulation, Psychological Service Office,

    462 So.2d 118, 120 (Fla. 2d DCA 1985). The standards prescribed in the grandfather clauses in Florida and Tennessee in 1973 were not substantially identical within the meaning of Section 481.311(3)(b), Florida Statutes.

    
    

22. Section 481.141, Florida Statutes (1973), in relevant part provided:

    
    

    Notwithstanding any of the provisions of this chapter any person . . . who submits evidence that for not less than one year prior to the passage of this law, he has been regularly engaged in the practice of landscape architecture . . . shall be entitled to receive without examination a certificate of registration if he files an application therefor . . . within six months after this chapter becomes law. 13/

    The grandfather clause in effect in Tennessee in 1973 authorized licensure without examination upon application within one year of the effective date of Public Law, Ch. 748 (1972) by:

    
    

    ...any practicing landscape architect, or engineer of good character who shall submit under oath evidence satisfactory to the Board that he was practicing landscape architecture at the time this Act becomes effective, and has had responsible charge of work of a character satisfactory to the Board...

    
    

    Unlike the standards prescribed in the grandfather clause in effect in Florida in 1973, the standards prescribed in the grandfather clause in Tennessee did not require a minimum of one year of experience in order to obtain licensure pursuant to the grandfather clause.

    
    

    RECOMMENDATION

    
    

    Based upon the foregoing Findings of Facts and Conclusions of Law, it is recommended that Respondent enter a Final Order determining that Petitioner is not eligible for licensure by endorsement as a landscaper architect.

    
    

    DONE and ENTERED this 16th day of September, 1991, in Tallahassee, Leon County, Florida.

    
    

    
    

    DANIEL MANRY

    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 September, 1991.

    
    

    ENDNOTES

    
    

    1/ Petitioner's request for reconsideration by the Board was denied at the Board meeting conducted on October 5, 1990. Petitioner requested a formal hearing on October 29, 1990, and the matter was referred to the Division of Administrative Hearings.

    
    

    2/ The phrase "six-year candidate" refers to the language in Sec 481.309(1)(b), Fla. Stat. (Supp. 1988). The Department is statutorily required to examine each applicant who the Board certifies has either completed a professional degree program in landscape architecture or presented evidence of six years of practical experience. See discussion of Sec. 481.309(1), Fla. Stat. (Supp.

    1988), in Conclusions of Law, para. 6, infra. The requirement for practical experience was changed from 11 years in former Sec. 481.051(4), Fla. Stat. (1973) to six years in Sec. 481.309(1), Fla. Stat. (Supp. 1988). The Board also recommended that Petitioner seek certification by the Council of Landscape

    Architectural Registration Boards ("CLARB") as an alternate route. The quoted language is taken from a letter written by the Executive Director of the Board to Petitioner on March 28, 1989. See Petitioner's Exhibit 2 at 33.

    
    

    3/ Petitioner has 30 years experience as a landscape architect and 10 letters of recommendation from landscape architects in the State of Florida. At the time of application, Petitioner had been employed by the Florida Department of Transportation since March of 1969, and had twenty-two (22) years of experience in the field of landscape architecture. The Petitioner's employment responsibilities include, and/or have included:

    1. direct responsibility for landscape planning, scheduling, and development of all state and federal right-or-way and building facilities in Broward, Palm Beach, Martin, St. Lucie, and Indian River counties;

    2. formulation or assisting in the formulation of policies and procedures which have significant dollar impact on the annual landscape budget;

    3. involvement in landscape design or construction of many state projects totalling in excess of

    4. total technical input and control over landscape design, specifications, construction supervision and maintenance programs at the Department of Transportation's noise barrier wall locations;

    5. total technical input and control over landscape design, specifications, construction, supervision and maintenance programs for 26 miles of roadway and interchange landscaping and irrigation;

    6. design and land form changes, preparation of contract documents and specifications, coordination of bidding process, construction supervision and maintenance for a new roadway corridor;

    7. administration under Chapter 479, Florida Statutes, and Chapter 14-10 of the Florida Administrative Code in order to insure the preservation of existing native vegetation, or provide the option for relocation;

    8. organization of a method of collecting data and implementing the collection of empirical data and evaluate collected data relevant to the Vegetation Management Research Project of Noxious/Exotic grasses on highways and adjacent properties with the use of

       Nu-metrics K5000 Computer;

    9. design and supervision replacement projects for soil stabilization and vegetation replacement;

    10. assistance in the development and presentation of educational courses to instruct department personnel in methods and values of preserving native vegetation and natural land features;

    11. coordination of the processing of the Highway Beautification Grant applications with all governmental agencies; and

    12. assistance in the development and implementation of the reforestation plan for Interstates 95, 75 and 595.

4/ Sec. 481.309(1), Fla. Stat., requires each person who seeks licensure as a landscape architect to apply to take the "licensure examination." Sec.

481.309(2) provides that the licensure examination

. . . shall include, but not be limited to an examination on the specialized aspects of the practice of landscape architecture in this state.

5/ See discussion in Conclusions of Law, para. 4, infra. 6/ See discussion in Conclusions of Law, para. 3, infra.

7/ See discussion at Conclusions of Law, paras. 8-9, infra.

8/ All statutory references are to Florida Statutes (Supp. 1988) unless otherwise stated.

9/ Sec. 481.051(3), Fla. Stat. (1973), provided in relevant part:

Except as hereinafter provided in this chapter to the contrary, every applicant . . . shall be required in addition to all other requirements, to establish by written examination his competency . . . .

The law in Tennessee does not have an express requirement for written examination. The requirement for a written examination is implied in Public Acts., Ch. 748, Sec. 8, which sets forth the minimum qualifications of applicants seeking to take a written examination to qualify them as a landscape architect. A copy of the Tennessee Code for 1973 was not submitted by either party to this proceeding and could not be obtained independently by the undersigned. A copy of the chapter laws of 1972 and the 1975 Cumulative Supplement for the Tennessee Code Annotated were obtained by the undersigned.

The provisions of Tennessee law effective in 1973 were enacted in Public Acts., Ch. 748, Secs. 1- 16 (1972). The provisions of that law remained unchanged through 1975, as evidenced by Cumulative Supplement for the Tennessee Code Annotated. The legislative history notes in the Cumulative Supplement indicate no changes were enacted between 1972 and 1975.

10/ Public Acts, Ch. 748, Sec. 8, in relevant part required an applicant seeking to take the written examination to:

. . . (a) Have been graduated from a college or university having a four (4) year curriculum in landscape architecture approved by the Board, and having a minimum of two (2) years of training experience of landscape architectural work of a grade and character satisfactory to the Board;

(b) have been graduated from a college or university having a five (5) year curriculum, approved by the Board and one (1) year of

training experience of landscape architectural work of a grade and character satisfactory to the Board; [or]

* * *

(d) graduation from a school of landscape architecture, if approved by the Board; except that evidence of five (5) years of actual, practical experience in landscape- architectural work of a grade and character satisfactory to the Board is submitted.

11/ The requirement that the out-of-state license must be issued upon written examination was deleted from Sec. 481.311(3)(b), Fla. Stat. (Supp. 1988). Sec. 481.311(3)(b), however, entitles Petitioner to licensure by reciprocity only if the criteria for licensure in Tennessee were substantially identical to the criteria for licensure in Florida in 1973. The criteria for licensure by reciprocity in Florida in 1973 required that Petitioner must have been issued his license in Tennessee upon written examination.

12/ See discussion at Conclusions of Law, paras.5-7, supra.

13/ Ch. 481, Fla. Stat., was first enacted in 1965. The grandfather clause in Sec. 481.141 remained embodied in the Florida Statutes through 1973 and was deleted from the Florida Statutes (Supp. 1974). The parties raised the issue of whether the grandfather clause was in effect only for six months after the effective date of Ch. 481 in 1965 or for six months after each subsequent reenactment through 1973. However, that issue is moot by the conclusions of law in this Recommended Order which determined that a grandfather clause is not a criteria for licensure and that, even if it is, the standards imposed by the grandfather clauses in effect in Florida and Tennessee in 1973 were not substantially identical.

APPENDIX TO RECOMMENDED ORDER

Petitioner submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

Respondent submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1 Accepted in Finding 1

2-8 Rejected as irrelevant and immaterial

9 Accepted in part in

Finding. Rejected in 4

part as irrelevant and immaterial

COPIES FURNISHED:

Angel Gonzalez, Executive Director Department of Professional

Regulation

Board of Landscape Architecture 1940 North Monroe Street Tallahassee,Florida 32399-0750

Jack McRay, Esquire General Counsel

Department of Professional Regulation

1940 North Monroe Street Tallahassee, FL 32399-0792

Arthur R. Wiedinger, Jr, Esquire Assistant Attorney General Department of Legal Affairs Suite 1602, The Capitol Tallahassee, Florida 32399-1050

Andrew L. Siegel Executive Pavilion Suite 412

300 Northwest 82nd Avenue Plantation, Florida 33324

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-007222

Orders for Case No: 90-007222