Findings Of Fact The Petitioner, Albert Poza, applied for licensure by examination to practice architecture in the state of Florida. The architectural licensure examination administered by the Respondent consists of two portions, the written examination given in December of each year and the site planning and design portion administered in June of each year. The Petitioner has complied with all requirements for admittance to the subject examination. The Petitioner sat for a twelve hour examination consisting of a drafting or sketching problem concerning which he was required to design a particular type of building to be accommodated to a particular site, taking into consideration numerous design and site considerations such as human traffic flow, parking, access to all floors, heating and cooling, including natural heating and lighting and numerous other aesthetic, engineering and legal requirements. The examination is administered by the office of Examination Services of the Department of Professional Regulation and is supplied to the state of Florida as well as to all other jurisdictions in the United States by the National Counsel of Architectural Registration Boards (NCARB) . Pursuant to the authority delineated below, this examination has been adopted for use by Florida applicants for licensure. The examination itself is so constituted as to require the applicant for licensure, the Petitioner, to design a structure for placement on a particular site, including mandatory requirements for accommodating the structure to the site, and vice versa, detailed design of elevations, building cross-sections, facades, and floor plans, as well as effective use of natural light and solar heating potential, regard for the physical and aesthetic needs of the building's occupants, its impact on the environment of the site and its locality and numerous other criteria. Prior to sitting for the examination, each applicant, including the Petitioner, receives a pre-examination booklet setting forth the architectural program to be accomplished by the applicant and various requirements to which the Petitioner is expected to apply himself in order to receive a passing grade. Immediately prior to commencing the examination itself, the Petitioner received other information designed to enable him to more adequately design the structure requested and perform the necessary technical and architectural requirements of the problem. In general, the examination was designed to require the Petitioner to design a solution to the site plan and the building design problems submitted to him by NCARB. The pertinent portion of the examination thus allows the examination graders, and through them, the Florida Board of Architecture, to determine whether an applicant such as the Petitioner is able to coordinate the various structural design, technical, aesthetic, energy and legal requirements in order to resolve the design and site plan problem after having been tested on these same requirements in written form in the initial portion of the examination administered in December of each year. The grading of the site and design portion of the examination was accomplished by submission of the Petitioner's work product to at least three architects selected by the various architectural registration boards of some twenty states. These graders are given training by the NCARB in order to standardize their conceptions of minimal competence required for achievement of a satisfactory grade on the examination. Each architect grader is then asked to review and score various solutions to the site and design problem submitted by applicants, including the Petitioner, on a blind grading basis. The grader has no knowledge of the name or state of origin of the applicant whose solution he is grading. The grader is instructed to take into consideration the various criteria set forth in Rule 21B-14.03, Florida Administrative Code, and the evaluation criteria set forth in the grading sheet. The graders are instructed to note areas of strength and of weakness in an applicant's solution with regard to the grading criteria and then determine, based on an overall conception of the solution submitted by the applicant, whether or not a passing grade is warranted. A passing grade is defined as a holistic grade of three or four as set forth in Rule 21B-14.04, Florida Administrative Code. The applicant must receive at least two passing grades from the three architect graders who independently grade his solution to the problem in order to pass the relevant portion of the exam. The Petitioner herein received two "2's", which are failing grades and one "3", which is a passing grade. The Petitioner demonstrated an effort to comply with the instructions set forth in the examination, as well as the pre- examination booklet. He failed, however, to achieve sufficient clarity of presentation in several material areas such that the graders could make a clear determination that he understood and had complied with sufficient of the mandatory criteria to achieve passage of the examination. As established by Herbert Coons, Executive Director of the Florida Board of Architecture, and Glenn Paulsen, Professor of Architecture at the University of Michigan, both graders of the Petitioner's examination and the Respondent's expert witnesses, the Petitioner failed to supply sufficient information to permit a passing score to be awarded based upon the criteria required to be considered and complied with in the examination program and by the authority cited below. The Petitioner's examination was deficient in a number of material respects. The Petitioner violated the setback requirements as to the side entrance of the building in question with the result that significant alterations of the off-site and publicly owned sidewalks and easements would be required in order to effect his design solution. It is not good architectural practice, when asked to design a structure, to use land which is not part of the land owned by the client requesting the design. The examination program also specifically required that the candidate either maximize the floor space in the building by eliminating some amenities or if determining to insert amenities such as atria, balconies, large interior spaces and so forth, that these be provided in such a way to make the structure a luxury-type office building. In effect, the owner's goals in this design problem sought either a functional building with maximum floor space or a luxury building with minimal floor space, but with significant cultural amenities. In his solution, the Petitioner did not meet either of those two goals, since he included minimal floor space and yet an insufficient number of luxury features required by the program as an alternative. Other significantly deficient areas in the Petitioner's examination solution included his failure to visually relate the building's design to adjacent buildings. That is, he ignored the instructions in the program requiring him to design a building in an area of historical significance with an appearance which is compatible with adjacent historical buildings; pictures of adjacent buildings being furnished in his examination booklet. The Petitioner failed to allow adequate room in the mechanical equipment space for heating and air conditioning equipment, which the size and type building would require. Additionally Witness Coons established, by scaling the Petitioner's design solution, that the building was too large for the site on which it was to be constructed. Portions of it would encroach upon public property and violate local zoning ordinances. In a more serious vein, it was established that the building design did not contain an adequate allowance for structural support as to the various spans over the columns. The column spacing was appropriate, but the beams depicted are not of a sufficient size and type to safely support the structure and there is a danger that a building so constructed would collapse. Additional deficiencies noted involved poor human traffic circulation in the third floor lobby area design, insufficient storage space included in the design for the third floor lecture room and inadequate provision for landscaping. Other less significant deficiencies were noted including, as admitted by the Petitioner that the square footage on the upper floors was in error. In short, significant program requirements were not provided for or complied with by the Petitioner. In view of the above determined deficiencies, the Petitioner failed to establish that his solution to the site and design problem posed by the examination reflects sufficient and appropriate consideration of the requirements and criteria he was instructed to address.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence in the record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore
Findings Of Fact Richard Berry, an applicant for licensure as a landscape architect, was administered the Landscape Architecture License Examination in June, 1987. This exam is a standardized national test which is prepared by the Council Of Landscape Architectural Registration Boards and administered through the Florida Department of Professional Regulation. Part of the examination requires the implementation of design knowledge through practical application. Mr. Berry's score on the design implementation portion of the exam was not sufficient to constitute a passing score. A weighted score of 75 on each portion is required to pass the examination. Mr. Berry passed all other portions of the examination. Upon initially receiving the failing score, Mr. Berry requested an informal review of the grading, which resulted in an upward adjustment of his score. However the score was still insufficient to raise the score to a passing level. The remaining disagreement centered on five items in the practical examination. The items were related to architectural drawings submitted by the Petitioner as required by question four of the design implementation portion of the exam. The items were as follows: 4b(2) drawing of wood deck attachment detail to wall 4b(4) drawing of concrete sidewalk grade wall detail 4b(5) drawing of metal fence detail 4b(6) qualities/quantities of materials listed 4c(2,3) drawing of deck detail At the hearing, Mr. Berry discussed the relevant exam questions and clearly articulated why he believed his responses were entitled to credit in addition to what had originally been given by the examination graders. The Department's expert witness, Mr. Buchannan, indicated that he had rescored Mr. Berry's exam responses in accordance with the "Examination Evaluation Guide" issued by the Council of Landscape Architectural Examination Boards. Mr. Buchannan testified that one point of additional credit should have been given for Mr. Berry's response on the item 4b(2) and one point of additional credit should be given for the response on item 4b(6) of the design implementation portion of the exam. No additional points were to be credited to the responses on the three remaining items. Juan Trujillo, examination development specialist for the Department of Professional Regulation testified as to the effect of the additional points. According to his testimony, the additional credit would provide Mr. Berry with, a raw score of 71.5, which equates to a weighted score of 74.5. The weighted score is rounded up by the Department to a grade of 75.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered by the Department of Professional Regulation, Board of Landscape Architecture, granting to Petitioner, if otherwise qualified, licensure as a landscape architect. DONE and ORDERED this 21st day of November, 1988, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1376 The proposed findings of fact submitted by the Respondent are accepted as modified in the Recommended Older. COPIES FURNISHED: Richard Berry, pro se 6588 Southeast 78th Avenue Keystone Heights, Florida 32656 William Leffler, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Pat Ard, Executive Director Department of Professional Regulation Board of Landscape Architects 130 North Monroe Street Tallahassee, Florida 32399-0750 Lawrence A. Gonzalez, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Bruce D. Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Petitioner is a licensed architect in the State of Michigan. He began working in this field in 1964 as a designer-draftsman. He later served as a job captain, supervising draftsmen and designers. He began practicing architecture as a principal in February, 1974, and has been active as an architect since that time. Petitioner began his education in architecture at the University of Oklahoma in 1960, but did not obtain an architectural degree. He began graduate studies at the University of Detroit in 1974 and was awarded a Masters of Architecture Degree in December, 1975. Petitioner was originally registered as an architect in Michigan on February 2, 1975. He obtained his registration without an architectural degree on the basis of his training, experience and national examination results.
Recommendation Based on the foregoing, it is RECOMMENDED: That Respondent enter a Final Order affirming its denial of Petitioner's application for licensure by endorsement. DONE and ENTERED this 28th day of June, 1983, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1983.
The Issue Whether Petitioner's application for registration to practice architecture in Florida should be approved.
Findings Of Fact Based upon the documentary evidence received and the entire record compiled herein, the following relevant facts are found. By letter dated April 7, 1982, authored by Herbert Coons, Jr., Executive Director for the Board of Architecture, Petitioner's application for registration to practice architecture in Florida was denied "due to the fact that [his] application does not show evidence that [he] had the professional degree which is required pursuant to Florida Statutes 481.213(3)(a)." Petitioner was further advised that he had failed to show that he satisfied the requirements of Florida Statutes 481.213(3)(b) or that he had engaged in the practice of architecture in another state for the ten (10) years, in conformance with Florida Statutes 481.213(3)(c). Therein, Petitioner was further advised that he could appeal the Respondent's denial of his application to practice architecture. Petitioner appealed that denial, and the matter was referred to the Division of Administrative Hearings for a formal hearing pursuant to Section 120.57(1), Florida Statutes. Pursuant thereto, the matter was noticed for hearing by copy of a Notice of Hearing dated December 14, 1982, scheduling the matter for hearing on February 18, 1983, in Miami, Florida. As stated, the Petitioner, or a representative on his behalf, did not appear to prove his entitlement for approval of his application for registration to practice architecture in the State of Florida. Based thereon, it is hereby RECOMMENDED: That the Department of Professional Regulation, Board of Architecture, enter a Final Order denying Petitioner's application for registration to practice architecture in the State of Florida. RECOMMENDED this 17th day of March, 1983, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 1983.
Findings Of Fact Based upon my observation of the witnesses, their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I make the following findings of fact: In order for Petitioner to obtain a license as a building contractor in Florida, he is required to successfully complete a certification examination. The examination is prepared by the ACSI National Assessment Institute arid administered by the Department of Professional Regulation (DPR). The questions on the exam are prepared from specific reference materials disclosed to the applicants, generally accepted industry procedures and standard field knowledge. Petitioner took the building contractor's examination administered by DPR in October, 1988. There were four parts to the examination. No evidence was submitted as to the scores an applicant was required to achieve and/or the number of sections an applicant was required to pass in order to be entitled to licensure. Petitioner did not receive a score on the exam sufficient to entitle him to licensure. However, no evidence was presented as to the grades Petitioner received on the various parts of his exam. Petitioner initially challenged seven of the questions on the Construction Administration part of the exam contending that they were unclear and ambiguous, and that, in any event, he correctly indicated the "closest" answer included for the multiple choice questions. However, for the reasons set forth in the Preliminary Statement above, only two of those questions (CA #19 and CA #24) are at issue in this proceeding. No evidence was of feared as to the value of each of the challenged questions and/or the number of questions Petitioner would have to succeed in challenging in order to obtain a passing grade. The first question challenged by Petitioner, CA# 19 required the exam taker to determine the latest time that a subcontractor could effectively serve a Notice To Owner under the Mechanic's Lien Law. The reference materials provide that the Notice To Owner must be served on the owner within 45 days from the time the lienor first performs labor or delivers material to the site. The reference materials also specifically provide that receipt of the notice on the 46th day is timely where the 45th day is a Sunday. A calendar was provided with the exam materials. The 45th day in question CA #19 fell on a Sunday (September 11). Therefore, the latest day that the Notice To Owner could be served was September 12. Both September 11 and 12 were listed as answers on the exam. Petitioner selected the answer corresponding to September 11. The correct answer was September 12. Petitioner's challenge to question 19 is without merit. Question CA #24 relates to AIA Document A201 and asks the examine taker to draw an analogy between a sub-contractor's responsibilities and obligations to the contractor as being the same as one of four listed choices. According to the Respondent, the correct answer 5 (C) which states that the sub-contractor has the same responsibilities and obligations to the contractor as the contractor has to the architect and owner. Petitioner chose answer (A) which indicates the contractor has the same responsibilities and obligations to the contractor as the architect has to the owner. In support of its position, the Respondent cites paragraph 5.3.1 of AIA Document A201 which states that "by appropriate agreement, ... the Contractor shall require each Sub-contractor, to the extent of the work to be performed by the Sub-contractor, to be bound to the Contractor by terms of the Contract Documents, and to assume towards the contractor all the obligations and responsibilities which the contractor by these documents assumes towards the Owner and Architect." Petitioner interpreted the question as asking the exam taker to draw an analogy between the relationship created by the sub-contract with the other relationships listed in the various answers. Viewed in this context, Petitioner reasoned that, while a contractual relationship existed between the sub- contractor and the contractor, AIA Document A201 specifically does not create a contractual relationship between the contractor and the architect. Therefore, he eliminated answer C and instead chose answer A because there clearly is a contractual relationship between the architect and the owner. Because the question was structured in the form of an analogy, it is misleading and ambiguous and Petitioner's interpretation was reasonable. Unfortunately, while the question was drafted to test the exam taker's familiarity with paragraph 5.3.1, it could also be read to be asking an exam taker to distinguish between the various relationships created through the contract documents. Significantly, the question does not specifically track the language of paragraph 5.3.1 which indicates that the sub-contractor must "assume" all the obligations and responsibilities which the contractor "assumes" towards the Owner and Architect. Therefore, the question is misleading and Petitioner's answer was reasonable under the circumstances.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner's request that his October, 1988 examination for building contractor's license be regraded be GRANTED and that Petitioner be deemed to have correctly answered question CA #24. DONE AND ENTERED this 9th day of January, 1990, in Tallahassee, Leon County, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1990. APPENDIX Both parties have submitted Proposed Recommended Orders. The Petitioner's Proposed Recommended Order contains a number of paragraphs of mixed findings of fact and conclusions of law which have not been numbered throughout. To the extent that the proposed findings of fact can be isolated, they are addressed below. The Petitioner's Proposed Findings of Fact The first two and a half pages of Petitioner's Memorandum simply sets forth question CA #24, the "correct" answer as determined by Respondent and Petitioner's answer. These facts are incorporated in Findings of Fact 8. The Remainder of Petitioner's Memorandum is deemed by the undersigned to constitute legal argument. The Respondent's Proposed Finding of Fact Proposed Finding Paragraph Number in the Finding of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection Adopted in substance in Findings of Fact 4. Incorporated in the Preliminary Statement. Also adopted in substance in Findings of Fact 5. Incorporated in the Preliminary Statement. Also adopted in substance in Findings of Fact 5. Incorporated in the Preliminary Statement. Also adopted in substance in Findings of Fact 5. Incorporated in the Preliminary Statement. Also adopted in substance in Findings of Fact 5. Incorporated in the Preliminary Statement. Also adopted in substance in Findings of Fact 5. The first sentence is incorporated in the Preliminary Statement. The second sentence is subordinate to Findings of Fact 7 and 8. Incorporated in the Preliminary Statement. Subordinate to Findings of Fact 7. Subordinate to Findings of Fact 8. COPIES FURNISHED: Kenneth D. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street, Ste 60 Tallahassee, FL 32399-0792 E. Harper Field Deputy General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Curtis A. Littman, Esquire Littman, Littman, Williams & Strike P. O. Box 1197 Stuart, Florida 34995 Fred Seely, Executive Director Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202 Richard Eaton 2601 S. D. Miami Street Stuart, Florida 34997
Findings Of Fact Respondent, Eric Neale Anderson, has been a registered building contractor in Florida, at all times relevant to this proceeding with license number RB 0016806. In December, 1983 Respondent entered into a contract with Mrs. Linda Fatzinger, a homeowner in Columbia County, for replacement of a roof. The contract price for the reroofing was $2820. After Respondent completed the reroofing, leaks developed in the new roof which Respondent attempted to fix. Respondent did not correct the leaking roof. Mrs. Fatzinger contracted with another building contractor who did repair her roof and eliminate the leaks for an additional charge of approximately $900. Mrs. Fatzinger's roof was inspected by representatives of the Columbia County Building Department who found violations of portions of the Standard Building Code, as adopted by Columbia County Ordinance 78-1, in the work performed by Respondent. Specifically, Respondent installed shingles on a portion of Mrs. Fatzinger's roof that had a pitch of only 1/2 inch per foot instead of the two inches per foot which is required by Section R-803 of the Standard Building Code when shingles are used. This means that the rise of the roof was only 1/2 inch per running foot which is virtually a flat roof. The manufacturer's packaging of the shingles used by Respondent clearly states that the shingles are for application to roof decks having inclines of not less than two (2) inches per foot. Respondent did not obtain a building permit for this reroofing job, although one was required by Columbia County Ordinance 78-1, and he admits knowing that one was required. In the installation of shingles on Mrs. Fatzinger's roof, it has been deemed admitted that Respondent used an insufficient number of nails. Although four nails per shingle were recommended by the manufacturer and are required by Section R-803, Standard Building Code, for the shingles that were used, in some areas Respondent used only two or three staples per shingle, and did not use any nails. In making the above findings of fact, Petitioner's proposed findings of fact numbered one through four are approved and proposed finding number five is rejected as irrelevant, unnecessary and not based on competent substantial evidence.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that Respondent's license be suspended for a period of three (3) months. DONE and ORDERED this 13th day of March, 1985 at Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1985. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Eric N. Anderson Route 9, Post Office Box 322 Lake City, Florida 32085 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner Manuel Lanz graduated from the University of Illinois School of Architecture in December of 1971, with honors and high distinction in the area of design. He is an applicant for licensure by examination to practice architecture in the State of Florida. The architecture examination in Florida is composed of two parts. The written portion of the exam (Part B) is given in December, and petitioner passed this portion. The design and site portion of the exam (Part A) is given in June and consists of a twelve-hour sketch problem. Petitioner failed this portion of the examination in June of 1982, as he has done on two previous occasions. Part A of the examination is supplied to participating states by the National Council of Architectural Registration Boards (NCARB) and involves the design of a structure by an applicant, including requirements for placing the structure on the site, elevations, cross sections, and floor plans. Applicants are provided with a preexamination booklet which sets forth the architectural program to be accomplished and the various requirements which are to be addressed in order to achieve a passing grade. At the time of the examination, the applicant is given other information to enable him to more adequately design the structure and perform the necessary technical adjustments. Each participating state sends a number of graders to an intense two- day grading session sponsored by the NCARB. The purpose, of such sessions is to standardize the graders' conceptions of the minimal competence required for a passing grade. Each examination is graded on a blind basis by at least two independent architect graders. If the two separate grades received, when considered together, do not result in a definite pass or fail, a third, and on some occasions a fourth, independent grader will review the applicant's solution. The project to be designed in the 1952 Site Planning and Design Test was a municipal airport terminal building in a small city in the northwest. Applicants were provided with information as to the applicable topography and climate of the area, code requirements, space requirements, site circulation requirements and the various areas to be included within the building. The candidates were required to provide a site plan, a ground level plan-north elevation; a second level plan and a cross-section of the facility. Petitioner's solution to the problem was weak in many areas. Service, baggage and aircraft traffic were co-mingled. Accessibility for handicapped persons was not addressed. His solution failed to comply with the applicable building code requirements with regard to the number of exits required, the location of stairs and a fire sprinkler system. Petitioner also failed to comply with the requirements regarding square footage. His exit doors swung in the wrong direction and there was no means of exit from the kitchen other than through the dining room of the restaurant. His cross-sectional failed to indicate the location of beams and ducts for heating and cooling. There was no indication in the solution that petitioner gave any consideration to the program requirements of natural ventilation or natural lighting, or that he made any provision for noise from the aircraft. The flat roof provided by the petitioner would not accommodate the precipitation experienced in the area as described in the program. While an effort was made by the petitioner to comply with the program requirements, he failed in several material areas and some minor areas to achieve sufficient clarity in his presentation and to observe program requirements.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that a Final Order be entered denying petitioner's application for licensure as an architect on the ground that he failed to successfully pass Part A of the architecture examination. Respectfully submitted and entered this 20th day of May, 1983, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (304) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 1983. COPIES FURNISHED: Silvio Lufriu, Esquire Suite 817 412 E. Madison Street Tampa, Florida 33602 John J. Rimes, III, Esquire Department of Legal Affairs The Capitol Tallahassee, Florida Mr. Herbert Coons Executive Director Board of Architecture 130 North Monroe Street Tallahassee, Florida 32301 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue is whether Petitioner's application for licensure should be granted or denied.
Findings Of Fact Petitioner filed applications with the Department of Business and Professional Regulation (DBPR) for a provisional plans examiner license and a standard building plans examiner license.1/ The Board of Building Code Administrators and Inspectors (Board), which is part of DBPR, is the state agency charged with certification of building code administrators, plans examiners, and building code inspectors, pursuant to Chapter 468, Florida Statutes. Accompanying her applications were: a statement of educational history; an affidavit from her then current employer, Robert Olin of the Orange County Building Division; an "Experience History" page; and notarized statements from two construction companies listed on the Experience History page, JE Activities Construction Managers, Inc., and BFC Construction Corp., regarding Petitioner's employment with those companies. DBPR reviewed her applications and sent her two letters dated August 9, 2005, both of which read in pertinent part as follows: If you are using your education as experience, you will need to have an official transcript sent from your institution. Have them send it to attention building codes, CIU. (There's no need to send the one for the psychology coursework, only the engineering.) The paperwork you sent from New York is not sufficient. You will need to use the affidavit form in your packet, such as Mr. Olin used. They need to fill out the form completely (please note it does not have to be notarized.) The affidavits must be filled out by a state licensed architect, engineer, contractor or building official (see application instructions.) They must include their state license number and tell what the license is (i.e. general contractor). If they are one of these professions but are not licensed in New York because it is not necessary in that state, they need to send a separate letter so stating, which is notarized. You need to send a new experience history page which includes your position in Orange County. (emphasis in original) Additionally, the August 9, 2005, letter regarding her application for a provisional license advised Petitioner the following: Please be advised that in order to be eligible for provisional license, you must be hired into the position of a building plans examiner. . . . You will need to send a new affidavit from your CBO stating that you have been hired into the position, and the effective date of such hire. (Please see Rule 61G19-6.012(6) showing you are eligible to perform the duties of a building plans examiner when hired for a period of 90 days from the date of submission of the application for provisional licensure) under direct supervision of a CBO. . . . Petitioner responded to the August 9, 2005, letters by supplying the requested documentation. Specifically, Petitioner provided a revised affidavit from Robert C. Olin, Manager/Building Official with the Orange County Building Division, which stated as follows: Ms. Georges was hired as a Plans Examiner on 6/13/05. She is applying for her Provisional Plans Examiner License and also to take the Building Plans Examiner exam. Presently her responsibility is to complete her training for the position of Plans Examiner, and to obtain a Provisional, and then a Standard Plans Examiner License. Petitioner also provided a revised Experience History page which included her position in Orange County listing the dates of employment as June 13, 2005 to present. Further, Petitioner provided revised statements/affidavits, on the affidavit form specified in the August 9, 2005, letter to Petitioner, regarding her work experience in New York. One of the affidavits was written by Ernest Jochen, vice president of JE Activities, Inc., who listed her dates of employment as February 2003 to June 2005, and her years of supervisory experience as "2 years 3 months." The other affidavit was written by Garfield Stewart, Senior Project Manager, of BFC Construction Corp., who listed her dates of employment as May 2000 to January 2003, and her years of supervisory experience as "2 years 8 months." The substance of the original statements of Mr. Jochen and Mr. Stewart regarding Petitioner's work experience was essentially the same as in the revised affidavits. The revisions were of a technical nature only, i.e., on the correct forms. Petitioner's work experience in these jobs, i.e., managing gut renovations of city-owned multi-family apartment buildings, is in the field of construction. Petitioner also ordered an official transcript from Polytechnic University in Brooklyn, New York, which was received by Respondent on October 5, 2005. The transcript indicates that Petitioner attended Polytechnic University from the fall of 1996 through the fall of 2000, earning 123.50 credits over four years with a major in Civil Engineering. The Board denied Petitioner's applications at a meeting held on December 9, 2005, and issued the Notice of Intent to Deny on January 4, 2006. Subsequent to issuance of the Notice of Intent to Deny,2/ Petitioner provided separate letters from Mr. Stewart and Mr. Jochen which read as follows: A license to complete gut renovations on multi-family structures is not required in the State of New York. The firm is only required to be bonded and insured. Although Petitioner was employed by Orange County at the time she submitted her applications and for several months thereafter, she explained at hearing that she left her employment with Orange County in June 2006, and was employed there for exactly one year. This meant at the time she made application, Petitioner was employed by an agency of government, but not at the time of hearing.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered denying Petitioner's application for provisional certification as a building plans examiner, and granting Petitioner's application for standard certification as a building plans examiner, thus allowing her to sit for the standard certificate examination. DONE AND ENTERED this 24th day of August, 2006, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 2006.
Findings Of Fact The Petitioner, John Binkley, has applied for licensure by examination to practice architecture in the State of Florida. The Architectural Licensure Examination administered by the Respondent consists of two portions, the written examination given in December of each year and the site planning and design portion administered in June of each year. Petitioner has complied with all requirements for admittance to the subject examination. The Petitioner sat for a twelve hour examination consisting of a drafting or sketching problem concerning which he was required to design a particular type of building to be accommodated to a particular site, taking into consideration numerous criteria such as human traffic flow, parking, access to both floors, heating and cooling, including passive solar heating, prevailing climate conditions and numerous other aesthetic, engineering and legal requirements. The examination is administered by the Office of Examination Services of the Department of Professional Regulation and is supplied to the State of Florida as well as to all other jurisdictions in the United States by the National Council of Architectural Registration Boards (NCARB) . Pursuant to the authority delineated below, this examination has been adopted for use by Florida applicants for licensure. The examination itself is so constituted as to require the applicant for licensure, the Petitioner, to design a structure for placement on a particular site, including mandatory requirements for accommodating the structure to the site, and vice versa, detailed design of elevations, building cross-sections, facades, and floor plans, effective use of natural light and solar heating potential, regard for the physical and aesthetic needs of the building's occupants, impact on the environment of the site aid its locality and numerous other criteria. Prior to sitting for the examination, each applicant, including the Petitioner, receives a pre-examination booklet setting forth the architectural program to be accomplished by the applicant and various requirements to which the Petitioner was expected to apply himself in order to receive a passing grade. Immediately prior to commencing the examination itself the Petitioner received other information designed to enable him to more adequately design the structure requested and perform the necessary technical and architectural requirements of the problem. In general, the examination was designed to require the Petitioner to design a solution to the site plan and building design problem submitted to him by the NCARB. The pertinent portion of the examination thus allows the examination graders, and through them, the Florida Board of Architecture, to determine whether an applicant such as the Petitioner is able to coordinate the various structural, design, technical, aesthetic, energy and legal requirements in order to resolve the design and site plan problem after having been tested on these same requirements in written form in the initial portion of the examination administered in December of each year. The grading of the site and design portion of the examination was accomplished by submission of the Petitioner's work product to at least three architects selected by the various architectural registration boards of some twenty states. These graders are given training by the NCARB in order to standardize their conceptions of minimal competence required for achievement of a satisfactory grade on the examination. Each architect grader is then asked to review and score various solutions to this site and design problem submitted by applicants, including the Petitioner, on a blind grading basis. The grader has no knowledge of the name or state of origin of the applicant whose solution he is grading. The grader is instructed to take into consideration the various criteria set forth in Rule 21B-14.03, Florida Administrative Code, and the evaluation criteria set forth in the grading sheet (Respondent's Exhibit C). The graders are instructed to note areas of strength and of weakness in an applicant's solution with regard to the grading criteria and then determine, based upon an overall conception of the solution submitted by the applicant, whether or not a passing grade is warranted. A passing grade is defined as a holistic grade of 3 or 4 as set forth in Rule 21B-14.04, Florida Administrative Code. The applicant must receive at least two passing grades from the three architect graders who independently grade his solution to the problem in order to pass the relevant portion of the exam. The Petitioner herein received two failing grades and one passing grade. The Petitioner demonstrated an effort to comply with the instructions set forth in the examination, as well as the pre-examination booklet. He failed however, to achieve sufficient clarity of presentation in several material areas such that the graders could make a clear determination that he understood and had complied with sufficient of the mandatory criteria to achieve passage of the examination. The testimony of Arnold Butt, Chairman of the Department of Architecture at the University of Florida, and architect Robert Yarbro, both graders of the Petitioner's examination, establishes that the Petitioner failed to supply sufficient information to permit a passing score to be awarded based upon the criteria required to be considered and complied with by the authority cited below. The Petitioner's examination was deficient in a number of material respects. He failed to make adequate provision for exits from the second floor of his structure. Indeed one grader, with a serious consideration to the consequences of a fire in the structure indicated that this single deficiency, standing alone, would justify a failing grade. Further, the lack of a second stairway from the second floor failed to meet the extent building code requirements. The Petitioner also failed to so orient the building on the construction site that adequate provision for prevailing temperatures and solar angles in the area could be accomplished for the purpose of conserving energy. The site in question, which was the identical site all applicants for the exam were required to consider and respond to, is located in the central United States (Indiana) where the prevailing concern for energy conservation is for heating in the winter season as opposed to cooling in the summer. A substantially greater number of days each year require heating of a structure in this locality instead of cooling. The Petitioner, however, oriented the building in such a way as to maximize cooling in the summer, but which would minimize solar heating, which is the reverse of the proper practice for that locality and the practice required in the instructions to the examination. The Petitioner's Exhibit One shows solar angles for that locality of the earth by latitude and is used by the Petitioner in an attempt to justify his placing of the great majority of the window area on the northern portion of the building, and indeed the Petitioner testified that this was done because that portion of the building received no direct sunlight. This testimony bears out the fact that, even at the hearing, the Petitioner apparently did not understand that in this locale and climate, use of solar energy for heating the building was the primary and relevant consideration rather than the avoidance of solar energy's detrimental effect on cooling of the building. The Petitioner further failed to make adequate provision for parking, especially with regard to the turning radius of vehicles and their ability to make ingress and egress from the parking spaces he designed, two of which were shown to be entirely unusable. Additionally, the Petitioner had an excessive grade within the parking lot and a 25 percent grade on the exit from the parking lot which was shown to be extremely excessive in view of prevailing winter weather conditions involving snow and ice and consequent safety hazards to persons and vehicles using the site. In his solution to the portion of the problem involving accommodating the site to the proposed structure, the Petitioner accomplished leveling the site by packing fill dirt around the southern border which resulted in an unfeasible gradient in the southern parking lot, and more importantly, the Petitioner used wooden railroad crossties to buttress and support a vertical six foot embankment of filled earth behind which would be placed a large volume of fill in violation of sound architectural principles. Professor Butt established that this would be an extremely dangerous condition in light of the drainage conditions that would prevail on the southern portion of the building site and that should such a six foot embankment be required as a result of such filling, that the minimum support should be a structural steel bulkhead or wall. Further deficiencies were described by the graders who were expert witnesses in addition to the deficiencies upon which the failing grade was based. The testimony of the witnesses that the failure to include the required second exit from the second floor was sufficient to justify a failing grade standing alone was not refuted by the Petitioner and his only justification for that deficiency in the design was that he felt occupants of the second floor, in case of fire, could make their escape by climbing out windows on to the roof of the first story of the building. Further, the Petitioner acknowledged that the grade of approach into or out of the parking area consisting of a four foot pitch in six horizontal feet is an excessive gradient and merely opined that there were only twelve hours to resolve the design problem and that in an actual project such as this that kind of problem would be ironed out later in the construction stage. That contention, however, does not constitute justification for departure from the requirements and instructions of the examination in this regard. Finally, witness Butt established that the Petitioner's failure to give due regard to one of the major design criteria, adjustment of the building to the construction site, engendered some of the other deficiencies resulting in the failing grade, especially the resulting significant problem involving the excessive grade in the parking lot and the resulting excessive and dangerous fill and retaining wall on the southern portion of the site. In view of the above-determined deficiencies, the Petitioner did not establish that his solution to the site and design problem posed by the examination reflects sufficient and appropriate consideration of the requirements and criteria he was instructed to address.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses, and the pleadings of the parties, it is RECOMMENDED that the failing grade conferred on the Petitioner on the June, 1980 site and design portion of the Architectural Examination be upheld and that the Petition be denied. DONE AND ENTERED this 10th day of April, 1981 in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 1981. COPIES FURNISHED: John F. Binkley 1937 Millbrook Terrace Port St. Lucie, Florida 33452 John Rimes, Esquire Assistant Attorney General Counsel for the Board of Architecture Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32301
