STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DALE R. SMITH, )

)

Petitioner, )

)

vs. ) CASE NO. 91-2120

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written Notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Daniel Manry, held a formal hearing in the above-styled case on July 30, 1991, in Miami, Florida.

APPEARANCES

For Petitioner: Mr. Dale Smith, pro se

28225 Southwest 172nd Avenue Homestead, Florida 33030

For Respondent: Vytas J. Urba

Assistant General Counsel

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUES

The issues for determination in this proceeding are whether Petitioner should receive additional credit on either Sections 3 or Sections 4 of the landscape architect licensure examination given in June, 1990.

PRELIMINARY STATEMENT

By letter dated March 12, 1991, Petitioner requested a formal hearing to contest the failing grade he received in Sections 3 and 4 of the landscape architect examination given in June, 1990. Petitioner alleged in his request for formal hearing that he had not been given proper credit for answers that were correct.

The matter was referred to the Division of Administrative Hearings for assignment of a hearing officer on April 3, 1991, and assigned to Hearing Officer J. Stephen Menton on April 8, 1991. The matter was set for formal hearing on May 29, 1991, pursuant to a Notice of Hearing issued on April 12, 1991. The formal hearing was rescheduled for July 30, 1991, pursuant to an

Order entered on May 28, 1991. This proceeding was transferred to the undersigned on July 29, 1991.

At the formal hearing, Petitioner waived his challenge to Section 4 of the examination. Petitioner testified in his own behalf and presented two exhibits which were admitted in evidence without objection. Respondent presented called no witnesses and presented no exhibits for admission in evidence.

A transcript of the formal hearing was requested by Respondent and filed with the undersigned on August 9, 1991. Proposed findings of fact and conclusions of law were required to be filed with the undersigned no later than August 23, 1991, and were timely filed by Respondent on August 23, 1991.

Petitioner did not file proposed findings of fact and conclusions of law. Respondent's findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner is an unsuccessful candidate for the landscape architects examination given in June, 1990, (the "examination"). Petitioner achieved a passing grade on Sections 2 and 5 of the examination but failed Sections 3 and 4.

   
   

2. Petitioner received a score of 72.8 percent on Section 3 of the examination. The minimum passing score is 75 percent. At Petitioner's request, Respondent regraded Petitioner's answers to Section 3 of the examination. Petitioner's score upon regrade was 73 percent. Petitioner needs 2 percentage points to pass Section 3 of the examination.

   
   

3. Petitioner received a score of 54.3 percent on Section 4 of the examination. The minimum passing score for Section 4 of the examination is 75 percent. At Petitioner's request, Respondent regraded Petitioner's answers to Section 4 of the examination. Petitioner's score upon regrade was 60 percent. Petitioner needed 25 percentage points to pass Section 4 of the examination, but waived his challenge to Section 4 during the formal hearing.

   
   

4. Petitioner was given proper credit for his answers to Section 3 of the examination. Petitioner should have received and received a score of 73 percent when Respondent regraded Petitioner's answers to Section 3 of the examination.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

6. Petitioner has the burden of proof in this proceeding. Petitioner must demonstrate by a preponderance of the evidence that Respondent's action is arbitrary and capricious. Harac v. Department of Professional Regulation, Board of Architecture, 484 So.2d 1333, 1338 (Fla. 3rd DCA 1986); State ex rel Glaser v. J.M. Pepper, 155 So.2d 383 (Fla. 1st DCA 1963); State ex rel I. H. Topp v. Board of Electrical Contractors, 101 So.2d 583 (Fla. 1st DCA 1958).

   
   

7. Petitioner failed to satisfy his burden of proof in this proceeding. Evidence presented by Petitioner at the formal hearing was not persuasive and was not sufficient to show that Respondent grading of Section 3 of the examination was arbitrary and capricious. Petitioner called no expert

witnesses. The testimony given by Petitioner in his own behalf amounted to argument rather than competent and substantial evidence.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's

challenge to the score he received for Section 3 of the landscape architect

examination given in June, 1990.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 24th day of September 1991.

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 24th day of September 1991.

APPENDIX TO RECOMMENDED ORDER

Respondent has 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. No notation is made for unnumbered paragraphs. Petitioner did not submit proposed findings of fact.

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 2

2. Accepted in Finding 3

3. Accepted in Findings 3-4

COPIES FURNISHED:

Angel Gonzalez Executive Director

Board of Landscape Architecture Board 1940 N. Monroe Street

Tallahassee, Florida 32399-0750

Jack McRay General Counsel 1940 North Monroe

Tallahassee, Florida 32399-0792

Vytas J. Urba

Assistant General Counsel Department of Professional

Regulation

1940 North Monroe

Tallahassee, Florida 32399-0792

Case No. 91-2120

(continued)

Mr. Dale R. Smith

28225 Southwest 172d Avenue Homestead, Florida 33030

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: 91-002120

Orders for Case No: 91-002120