The Issue The sole issue in this cause is whether the Petitioner should have received a passing grade on the design and site planning portion of the National Architectural Examination, which he took in June, 1982. Both parties submitted post hearing proposed findings of fact in the form of a proposed recommended order. To the extent the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.
Findings Of Fact The Petitioner, Daniel T. Canavan, is an applicant for licensure by examination to practice architecture in Florida. The architectural examination in Florida is administered in two parts: a written examination given in December of each year, and the design and site planning examination given in June of each year. Canavan met all requirements for admittance to the licensure examination. Canavan took the design and site planning portion of the National Architectural Examination in June, 1982. This examination consisted of various design and site problems to be resolved in drawings to be completed within 12 hours. The examination is administered by the Office of Examination Services of the Department of Professional Regulation. The examination is prepared and supplied to the Office of Examination Services by the National Council of Architectural Registration Boards (NCARB). The design and site planning portion of the examination for June of 1982 required the design of a small airport terminal by the applicant to include drawings of the structure on the site, exterior elevations, interior floor plans and cross-sections of the building interior. Canavan, together with the other applicants, was supplied information and a preexamination booklet setting forth generally the architectural program to be accomplished and the various requirements which the applicants would be expected to sketch. At the time of the examination, other information was supplied to the applicants to enable them to more adequately design the structure requested and meet the necessary architectural requirements. The examination of the Petitioner, together with the examinations of the applicants from some 20 states using the NCARB standardized examination, were graded at one time by graders of the NCARB. Each state participating in the examination process provides at least two qualified architects to function as graders. These graders are given specific training by NCARB to standardize their grading approach to the examination. The examinations of all the applicants are divided among the various graders on a blind grading basis in such a manner that the grader has no knowledge of the name or state of origin of the applicant whose examination he is grading. Graders look at the applicant's overall plan to determine whether the applicant has met or failed to meet the requirements. The grader makes notations of specific areas of weakness based upon the grading criteria and based upon the overall conception of the applicant's submission. Each examination is graded by a minimum of two graders, who grade the examination independently. If the examination receives a failing grade from each of the independent graders, it is graded by a third grader. The Petitioner's examination was graded in accordance with the above process and received a failing grade, indicating that it was graded by three independent graders. The Petitioner was notified of his failure to pass the examination and given notice of his right to a formal hearing. Jeff Hoxie, who was one of the graders on the June 1982 examination and who is an experienced architect licensed in the State of Florida, reviewed the Petitioner's examination in the manner that it would have been assessed by the graders, explaining the process generally and explaining the specific deficiencies which he noted. He used the original grader's comments regarding the deficiencies noted as a point of departure to explain his assessment of the Petitioner's examination. The Petitioner failed to follow specific examination requirements as to the required sizes of specific floor areas, failed to follow building code requirements in his design of the kitchen and restaurant, and failed to properly draw the sketch required of the structural and mechanical elements of the building. While there were other areas of weakness noted, Mr. Hoxie stated that the major failures listed above would justify a failing grade. Petitioner's testimony revealed that he had made a mistake in sketching one plan, and that, because of this mistake and the corrections which Petitioner made, he ran out of time, which resulted in the specific failings noted by the three graders at the national level and confirmed by Mr. Hoxie.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Board of Architecture of the State of Florida fail the Petitioner, Daniel T. Canavan, on the design and site planning portion of the National Architectural Examination taken by Canavan in June, 1982. DONE and RECOMMENDED this 11th day of April, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 11th day of April, 1983. COPIES FURNISHED: Mr. Daniel T. Canavan 814 Avenida Hermosa West Palm Beach, Florida 33405 John J. Rimes, III, Esquire Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32301 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Herbert Coons, Executive Director Board of Architecture 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue for consideration in this case is whether Respondent's license as a certified building contractor in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Construction Industry Licensing Board was the state agency responsible for the licensing and certification of building contractors, and the regulation of the construction industry in this state. Respondent, Kenneth McDuff Roesch, III, was certified as a building contractor under license number CB C057040, issued initially on December 20, 1993. On March 20, 1998, he changed the status of his license from "Active d/b/a individual" to "Active qualifying Roesch Housemovers, Inc." (RHI). The evidence does not indicate exactly what the relationship between Respondent and RHI was prior to the contract in issue here. Although Respondent's name does not appear on the contract or on any of the other documentation relevant hereto, at hearing he freely indicated his participation in the management of RHI and his responsibility for actions taken by the company. In September 1996 the City of St. Petersburg advised David Maffo that because of the effects of tropical storm Josephine, he would either have to elevate his house in St. Petersburg or tear it down. On November 22, 1996, Mr. And Mrs. Maffo entered into a contract with RHI to raise by five feet their residence located at 8211 Carolyn Street in St. Petersburg and install a new solid foundation. The price for the contracted work was $23,500, with $11,500 due at the signing of the agreement. The contract form reflects that RHI had been bonded and licensed house movers since 1934, but neither Respondent's license number nor his certification number appears on the contract agreement. The contract agreement was signed by Mark Roesch, Respondent's brother, for RHI. Respondent's name does not appear on the contract form. RHI submitted plans for the work called for under the contract to the Building Department of the City of St. Petersburg on February 26, 1997. The application form was signed for the company by Mark Roesch, Respondent's brother. That same date, February 26, 1997, a permit was issued for the work called for under the contract and the application. The contractor was listed as Roesch Housemovers, Inc. on both the application for the permit and the permit. Mark Roesch was the representative of RHI who signed the application for the permit. According to Mr. Maffo, work on the project started on January 28, 1997, prior to the issuance of the permit, at which time Mr. Maffo paid $4,000 to a representative of RHI. Mr. Maffo paid RHI an additional $10,000 on January 30, 1997, and $5,000 more on March 25, 1997, for a total of $19,000. On February 27, 1997, Glenn Savell, the chief building inspector for St. Petersburg, inspected the work being done by RHI and issued a red tag because there was no footer ground and vertical steel was not tied to the footer steel. Neither Respondent nor any of his employees thereafter called the building department for a final inspection subsequent to the issuance of the red tag, and in March 1997 Respondent advised the Maffos that the work called for under the contract had been completed. Mr. Maffo immediately informed Respondent that the project had not undergone a final inspection, and as a result, the house could not be reoccupied. Mr. Savell again inspected the property on June 12, 1997, and again issued a red tag, this time demanding that Respondent obtain a certification from a structural engineer that the foundation and piers met specifications. Mr. Roesch was aware of the issuance of that red tag, but took no action to obtain the required certificate at that time. On June 25, 1997, Mr. Maffo retained Austin Engineering, Inc., to perform an inspection of the project and paid the firm a fee of $1,275.00. Austin's report, a copy of which was given to Respondent, indicated that the project as accomplished by RHI was not acceptable. Upon receipt of this report, Mr. Maffo and Respondent met to discuss it, and Respondent gave Maffo sufficient assurances so that he, Maffo, started a renovation of the interior of the home to correct the damage done by the storm. However, Maffo did not complete them because all assurances made by Respondent did not come about. At the end of July 1997, Mr. Savell's supervisor, Mr. Hill, directed Respondent by letter to hire a structural engineer of his choice to evaluate the project. It was implied that if Respondent's engineer approved the work, the final approval would be issued. More than a year later, on October 8, 1998, Benson Engineering, Inc., the structural engineering firm retained by Respondent in response to Mr. Hill's letter, visited the masonry foundation and support walls and piers done at the Maffo house, and on October 16, 1998, submitted its report approving the project. Based on this approval, Mr. Savell, for the City, issued final approval even though he did not again personally inspect the work. Petitioner contends that the lapse of time between the last work done and the notice to obtain an individual engineering report in June/July 1997 and the receipt of that report more than a year later was unreasonable. Absent any explanation or justification for the delay, it would so appear. Mr. Maffo had Austin Engineering again inspect the property on January 29, 2000. In its report, Austin took exception to the Benson Engineering evaluation of RHI's work and identified many problems still existing. The project was also examined by Wilbur Yaxley, a licensed professional engineer and expert in structural and construction engineering. He found the same defects as found by Austin. These included: The fill cells used to raise the foundation were never adequately filled with concrete as called for in the plans for the project. In at least one location there was no tie-in from the new foundation to the existing foundation. Several of the pillars used to raise the foundation were loose and able to be moved by hand, and others had fallen over. Several of the pillars used to raise the foundation were not horizontal. The foundation walls contained cracks. The interior piers were not constructed in accordance with their design. The floor of the interior had bowed in the center. The horizontal joint reinforcement was not completed as required by the plans. The project as completed does not comply with the plans approved by the City of St. Petersburg at the time of issuance of the permit. The project as completed is not as sound structurally as it would have been if it had been constructed in accordance with the plans approved by the City. During the first year after retaining Respondent's firm to raise his house, while waiting for Respondent to obtain final approval on the work, Mr. Maffo continued to make his monthly mortgage payments of $1,200 even though he and his family did not occupy the property. For financial reasons he was ultimately required to cease making his mortgage payments and the property was lost to foreclosure in April 2000. The experts who examined the property have concluded that further remedial work estimated to cost approximately $17,000 would be required before it could be occupied. These experts, who are familiar with the project, suggest that a reasonable time to complete it would be four months. It is so found. Respondent's father and brother, both of whom are active in the business, indicated the company has been in business for many years without complaint. Respondent presented the testimonials of several prior clients who appear to have been satisfied with the work done for them, and no evidence to the contrary was presented by the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Construction Industry Licensing Board enter a final order placing Respondent's license as a certified building contractor on probation for one year; imposing a total administrative fine of $950; requiring Respondent to pay $2,625.41 as costs of investigation and prosecution; and requiring Respondent to reimburse the Maffos such sums as can be considered above actual RHI's out-of-pocket costs related to this project. DONE AND ENTERED this 16th day of August, 2000, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 2000. COPIES FURNISHED: Robert A. Crabill, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Kenneth McDuff Roesch, III 13650 66th Street North Largo, Florida 33771 Rodney L. Hurst, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Northwood Centre Tallahassee, Florida 32399-0792
The Issue The issues in this case are whether certain questions within the June 2002 construction building contractor examination are invalid, and whether Petitioner should receive credit for certain answers scored as incorrect.
Findings Of Fact In June 2002, Petitioner sat for the construction building contractor examination. Shortly following the exam, Petitioner was advised that he incorrectly answered 17 of the 50 exam questions and did not attain the minimum passing score of 70 percent, but received a failing scaled score of 66 percent. Petitioner timely challenged the validity and scoring of eight questions, including questions 8, 14, 17, 33, 34, 38, 43, and 44. In order for Petitioner to acquire a passing score, Petitioner must prove that certain challenged questions are invalid or demonstrate that he is entitled to receive credit for his answers. Specifically, Petitioner must demonstrate that either three questions should be stricken from the exam providing Petitioner with 70.2 percent, two questions should be stricken and one answer scored as correct providing Petitioner with 70.8 percent or two answers should scored as correct providing Petitioner with 70 percent. QUESTION 8 Exam Question 8 asks, "According to AIA-A201, who determines the interest rate that the contractor can charge on due and unpaid payments?" Petitioner's expert, Mr. Uman, argues that the parties to the contract are not defined within the question and it is therefore misleading. However, the credited answer D, "all the parties must agree on the rate" is within the provided reference material and is clearly the best answer. It is not misleading and Petitioner's argument lacks merit. In addition, 89.47 percent of the test-takers correctly answered Question 8. QUESTION 14 Exam Question 14 is wordy and involves computations. It requires the test-taker to calculate the number of "labor" hours required per 100 pieces to build a wall, given certain pricing and wall construction information. Question 14 is ambiguous and confusing on its face. While the question asks for labor hours, the facts provide a fixed combined hourly cost for a mason and laborer's hour. There is no distinction made between "labor" hours and a "laborer's" hours. Mr. Collier admitted that there is some apparent confusion between "labor" costs and the "laborer's" costs. Mr. Palm further agreed and indicated that he fully understood Petitioner's rationale to divide the labor costs in half and choose answer A. Furthermore, it is clear that Petitioner's perception of the question was not unique. In fact, only 46.62 percent of the test-takers correctly answered Question 14. QUESTION 17 Exam Question 17 asks, "During the bid process, which document has priority in the event of conflicting information?" Clearly, the correct answer is B, "addenda." Petitioner's argument regarding "competitively bid projects" is without merit. Mr. Palm succinctly explained that Petitioner's selection was obviously incorrect because "plans don't change during the bid process unless there is an addenda issued." Moreover, 75.56 percent of the test-takers correctly answered Question 17. QUESTION 33 Exam Question 33 identifies a situation that where drawings differ from written specifications and where there is no legal precedent that one is more binding than the other. The question specifically calls for the best procedure according to the listed and available reference. While Mr. Uman argues that the answer does not appear within the reference material in a clear manner, the exact text of the question and answer are in fact within the material. Petitioner's argument lacks credibility. QUESTION 34 Exam Question 34 asks the test-taker "what is the EARLIEST workday for completing the masonry work?" given the number of crew, the number of hours required, and the ratio constant of the crew. Although 80.45 percent of the test-takers correctly answered Question 34, Mr. Uman argues that the question could have been answered without reference to the Builder's Guide to Accounting material and therefore, was misleading. Petitioner's argument is devoid of common sense. QUESTION 38 Exam Question 38 asks the test-taker to identify the activity that "a specialty structural contractor is qualified" to perform. Petitioner's expert, Mr. Uman, again argues that the question is misleading since the credited correct answer "perform non-structural work" is not written verbatim in the provided reference material. To the contrary however, all of the alternative choices are clearly listed in the reference material as activities specifically prohibited by specialty structure contractors. Furthermore, page 2B17 to 61G415.015 of the Contractor's Manual specifically states that: The specialty structure contractor whose services are limited shall not perform any work that alters the structural integrity of the building including but not limited to roof trusses. Respondent's experts, Mr. Collier and Mr. Palm, agree that Question 38 is clear. Moreover, 53.38 percent of test- takers correctly answered the question. While the question appears to require enhanced reasoning skills and is generally more difficult, it is not misleading. Petitioner's assertions are without merit. QUESTION 43 Exam Question 43 asks, "Which accounting method should be used by a contractor if the contractor is unable to reasonably estimate the amount of progress to date on a job or the total costs remaining to fulfill the contract?" Mr. Uman argues that the question is ambiguous and the reference material is "not terribly clear." He further alleges that when a contractor cannot estimate progress, the contractor cannot establish a "completed contract method," the credited correct answer. Respondent's experts disagree. While it is true that Mr. Palm agreed that all of the choices are accounting methods which is inconsistent with Mr. Collier's testimony, the reference material is clear. In fact, 58.65 percent of the test-takers correctly answered Question 43. Petitioner presented insufficient evidence that he should receive credit for his answer or that Question 43 should be invalidated. QUESTION 44 Exam Question 44 provides detailed information regarding a standard form contract and asks, "Based ONLY on the information given above, what is the amount of the current payment due?" In addition, however, as Mr. Uman points out, the standard form referred to in the problem was mistakenly misidentified as Form 201 instead of Form 702. While it is clear that the referenced form was mislabeled, the precise form number was incidental, unrelated to the question, and unnecessary to compute the answer. In fact, Mr. Palm explains that the problem was "just a mathematical exercise." According to Mr. Collier, the question was not misleading, and the incorrect reference was irrelevant. "It's simple math, industry knowledge." Furthermore, Petitioner's answer is clearly incorrect because "he failed to deduct the retainage." Finally, 54.89 percent of the test-takers correctly answered Question 44.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered invalidating only Question 14, re-computing Petitioner's examination score, and dismissing his challenge. DONE AND ENTERED this 1st day of October, 2003, in Tallahassee, Leon County, Florida. S WILLIAM R. PFEIFFER 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 1st day of October, 2003. COPIES FURNISHED: Nickolas Ekonomides, Esquire 791 Bayway Boulevard Clearwater, Florida 33767 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Nancy P. Campiglia, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Robert Crabill, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint? If so, what punitive action should be taken against him?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Respondent is a building contractor. He obtained his license (License Number CB C028158) to engage in the contracting business in the State of Florida in 1984. Respondent's license expired on August 31, 1996, without Respondent having made any effort to renew it. On September 1, 1996, the Department placed Respondent's license on "a delinquent status for non-renewal." 5/ It considers the license to be invalid for the 1996-98 licensing period. At all times material to the instant case, Respondent was the primary qualifying agent for Loma Linda Homes Corporation (Loma Linda). In late 1993 or early 1994, Loma Linda entered into a written contract (Contract) with Carmen Bennett and her daughter-in-law, Virginia Bennett, in which it agreed to construct a residence for the Bennetts at 5403 Loma Vista Loop in the Loma Vista subdivision in Davenport, Florida. The Contract had a "[t]ime is of the essence" provision. 6/ The Contract further provided that is was "conditioned upon Purchaser[s, the Bennetts] obtaining a mortgage loan commitment within sixty days from the date of this contract for a term not to exceed thirty (30) years at the prevailing market interest rate at time of closing." The Bennetts timely obtained such a commitment. Prior to the execution of the Contract, Loma Linda had received a $1,000.00 deposit from the Bennetts. At or around the time the Contract was executed, the Bennetts provided Loma Linda with an additional deposit in the amount of $9,813.00. The Contract provided that "[i]f Seller [Loma Linda] fails, neglects, or refuses to perform this Contract, the Purchasers [the Bennetts] shall receive the return of all sums paid to the Seller." Loma Linda failed to meet its obligations under the Contract. Construction of the residence that Loma Linda agreed to build for the Bennetts never commenced. All that Loma Linda did in furtherance of its contractual obligations was to clear the lot on which the home was to be built. The Bennetts have not received back any of the $10,813.00 in deposit monies that they paid Loma Linda.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board enter a final order: (1) finding Respondent guilty of the violations alleged in Counts I, III and V of the Administrative Complaint; (2) penalizing Respondent for having committed these violations by imposing on him a fine in the amount of $1,000.00 and requiring him to pay $10,813.00 in restitution to the Bennetts and to reimburse the Department for all reasonable costs, excluding attorney's fees, associated with the Department's investigation and prosecution of the charges set forth in Counts I, III and V of the Administrative Complaint; 10/ and (3) dismissing Counts II and IV of the Administrative Complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 9th day of January, 1997. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1997.
The Issue The ultimate issue in the instant case is whether Petitioner's challenge to the failing grade he received on the Building Design section of the June, 1989, architecture licensure examination should be sustained.
Findings Of Fact Based upon the record evidence, the Hearing Officer makes the following Findings of Fact: The architecture licensure examination utilized by the Department of Professional Regulation is a national examination prepared by the National Council of Architectural Registration Boards (NCARB). In June, 1989, Petitioner took the Building Design section of this licensure examination, which was the only section of the examination he had not previously passed. A candidate must pass all sections of the examination to qualify for licensure. The Building Design section of the examination is a practical test. Candidates are given a test booklet which contains a description of the environmental and programmatic requirements for a hypothetical building and site and then directs the candidates to "synthesize this information into a coherent, aesthetic concept for the building and site and to graphically convey [their] solution in the required drawings." The required drawings must be completed within twelve hours. Because of its length, this portion of the examination can be physically demanding. Moreover it is typically difficult to pass. Normally only 35-40% of the candidates receive a passing grade on this section of the examination. 1/ The candidates' solutions are graded by jurors who are selected in accordance with guidelines developed by NCARB. Jurors must have a minimum of five years experience as a licensed architect. Jurors gather at regional sites throughout the country where they grade the solutions over a two and a half to three day period. Each juror is furnished with a NCARB Jurors' Manual in advance of the grading session. The manual provides detailed information regarding the standards and criteria the jurors are expected to apply in evaluating the drawings submitted by the candidates. The jurors also receive training and instruction regarding the grading process at the grading site before they begin grading the candidates' solutions. The training and instruction are provided by master jurors, who have considerable experience in grading this portion of the examination. Each master juror oversees approximately eight to ten jurors. A master juror will not permit a juror under his or her supervision to commence grading until he or she is satisfied that the juror understands the grading process and will reasonably apply the requisite standards and criteria in evaluating the candidates' drawings. The master juror's supervisory responsibilities with respect to a juror do not end when the decision is made to allow the juror to begin grading. The master juror regularly monitors the grades given by the juror. If the juror's grades are on the average markedly higher or lower than the grades given by the other jurors, the juror will be counseled by the master juror. Jurors are reminded throughout the grading session that, in grading the candidates' work, they should take into consideration that the candidates merely need to demonstrate that they can perform "at minimum level capability" and that the candidates had only 12 hours to prepare their drawings. Test solutions are randomly distributed to the jurors for grading. The jurors are unaware of the identities of the candidates whose drawings they are evaluating. Generally, jurors spend approximately three to five minutes reviewing a candidate's drawings before deciding on the grade to give the candidate. This is a sufficient amount of time to evaluate the candidate's work. After coming to a decision on the matter, the grade is recorded on a score sheet and entered in a computer. The juror must assign one of the following five numeric grades to each set of drawings he or she reviews: 0 (when the candidate submits blank pieces of paper); 1 (very poor); 2 (unacceptable); 3 (acceptable); and 4 (very good). The latter two grades are passing grades. The remaining grades are failing grades. The grade given is intended to reflect the juror's assessment of the candidate's entire work product on this portion of the examination. In addition to assigning one of the foregoing numeric grades, the juror is required to check the appropriate box on the score sheet to indicate "up to three areas of weakness" if he or she has assigned a failing grade. Each candidate's drawings are graded by a least two different jurors,. They assign grades without knowing what grade the other juror has given. If the candidate receives a grade of 3 or 4 from both jurors, he or she passes. If the candidate receives a grade of 0 or 1 from both jurors, he or she fails. If the candidate receives any other combination of grades, a third juror will review and grade the candidate's drawings. If the third juror assigns a grade of 3 or 4 and one of the other juror's had also assigned a grade of 3 or 4, the candidate passes. If the third juror assigns a grade of 0, 1 or 2 and one of the other jurors had also assigned a grade of 0, 1 or 2, the candidate fails, unless his or her three grades are 1/2/3, 2/3/2, 2/4/2 or 2/2/3. Under such circumstances, the candidate's work product will be reviewed and graded by a master juror. If the master juror assigns a grade of 3 or 4, the candidate passes. If the master juror assigns a grade of 0, 1 or 2, the candidate fails. The Building Design section of the June, 1989, examination involved the design of a two-story religious life center on a college campus located in Kalamazoo, Michigan. The test booklet that Petitioner and the other candidates received upon their arrival at the testing location described in a clear and concise manner the environmental and programmatic requirements of the project, as well as the type of drawings that had to be produced, to wit: an upper level floor plan/site, lower level floor plan, east elevation and building section. In addition, the booklet gave notice that these drawings would be evaluated in accordance with the following grading criteria: Your solution will be graded based on the following categories. To pass this examination, a solution must be at least minimally acceptable in every major category. Program Requirements Development of All Programmed Spaces Conformance to Square Footage Requirements Compliance with Required Spatial Relationships Design Logic Circulation Spatial Relationships/Proportions/ Adjacencies Compatibility to Existing Context Code Compliance Fire Wall Separations Means of Egress Handicapped Accessibility Requirements Technical Aspects Material Selection and Wall, Floor and Roof Assemblies Structural Systems, their Appropriateness and Integration Mechanical Systems Completeness and clarity of Presentation, Adherence to Test Instructions, or Required Drawing(s) Missing NOTE: Solutions which have a required drawing missing, are unintelligible, or are drawn with the use of color, press- on letters, or transfer drawings, will automatically receive a grade of FAIL. Petitioner's drawings were reviewed and graded by three jurors and a master juror. He received grades of 2, 3 and 2 from the jurors and a grade of 2 from the master juror. The score sheets submitted by the master juror and the jurors who gave Petitioner a grade of 2 reflect the following: one found Petitioner's drawings to be weak in the areas of design logic-circulation and technical aspects-structural systems 2/; another deemed the drawings to be deficient in the areas of design logic- circulation and code compliance-means of egress; and the third was of the view that the drawings were unacceptable in the area of code compliance-means of egress. Petitioner's drawings, in fact, were deficient in all of these areas 3/ and he therefore deserved to receive a failing grade on the Building Design section of the June, 1989, licensure examination. 4/ CONCLUSION$ OF LAW Any person seeking a license to practice architecture in the State of Florida must apply to the Department of Professional Regulation to take a licensure examination if he or she is not qualified for licensure by endorsement. Section 481.209(1), Fla. Stat. The licensure examinations given by the Department must "adequately and reliably measure an applicant's ability to practice [architecture.]" Section 455.217(a)(a), Fla. Stat. The Department must "use professional testing services to prepare, administer, grade and evaluate the examinations, when such services are available and approved by the [B]oard of Architecture." Section 455.217(1)(a), Fla. Stat. The National Council of Architectural Registration Boards (NCARB) offers professional testing services that have been approved by the Board of Architecture by rule. Fla. Admin. Code Rule 21B-14.001. In accordance with the mandate of Section 455.217(1)(a), Florida Statutes, the Department utilizes these services in testing applicants seeking to become licensed architects. NCARB's "testing format . . . recognizes that some subjectivity is inherently part of the examination [grading process]. But the testing system seeks to minimize professional bias of individual graders by a training and testing format which [is designed to produce] fairly uniform results." Harac v. Department of Professional Regulation, Board of Architecture, 484 So.2d 1333, 1337 (Fla. 3d DCA 1986). An applicant who fails to attain a passing grade on the licensure examination is entitled to an administrative hearing on the matter conducted pursuant to Chapter 120, Florida Statutes. Sections 455.229 and 455.230, Fla. Stat.; Fla. Admin. Code Rule 21-11.012. The burden is on the applicant to establish by a preponderance of the evidence that his examination was erroneously graded. See Harac v. Department of Professional Regulation, Board of Architecture, 484 So.2d 1333, 1338 (Fla. 3d DCA 1986)("Ordinarily one who fails a licensure examination would shoulder a heavy burden in proving that a subjective evaluation by an expert is arbitrary"); Florida Department of Health and Rehabilitative Services v. Career Service Commission 289 So.2d 412, 414 (Fla. 4th DCA 1974)("the burden of proof is on the party asserting the affirmative on an issue before an administrative tribunal"'). The proof Petitioner submitted at hearing was insufficient to satisfy this burden of proof. Indeed, the preponderance of the record evidence establishes that the failing grade Petitioner received on the Building Design section of the June, 1989, licensure examination was warranted. In addition to alleging that he should have been given a passing grade on this portion of the examination, Petitioner also advanced the following claims in his petition for an administrative hearing filed in the instant case: 1) the exam was graded improperly insufficient time was allotted for the proper grading of the exam by jurors. a subjective process is used to grade the exam. see additional specific items below. * * * the grading process is unfair confidentiality of previous jurors grades are not kept from subsequent jurors. confidentiality of test taker's probable nationality, etc. is not maintained. the ETS was contracted by the State of Florida without proper bidding procedures. 5/ non-subjective grading is a prerequisite for fair grading and was not provided. The Dept. of Professional Regulation has allowed a campaign by private interests to influence the grading and licensure of architect candidates. The American Institute of Architects has acted on a campaign to increase architect's compensation by limiting the number of professionals licensed by the Department of Professional Regulation. This influenced the grading of the exam and licensure of architects in Florida. No non-A1A member architects are state board members and A1A membership is a de facto requirement. The attempts to limit the number of architects to be licensed comes at a time when large numbers of women and minority applicants are applying for licensure. d. Mr. Garcia is a minority applicant and was substantially affected. Petitioner's claim that "a subjective process is used to grade the exam" finds support in the record. That subjectivity plays some role in the grading process, however, is not, standing alone, a basis upon which to overturn the results of a licensure examination. To prevail, an unsuccessful applicant must also show that those who subjectively evaluated his or her examination acted arbitrarily or without reason or logic in giving him or her a failing grade. See Harac v. Department of Professional Regulation, Board Qf Architecture, 484 So.2d 1333, 1337 (Fla. 3d DCA 1986); State v. Board of Electrical Examiners for Jacksonville Beach, 101 So.2d 583, 586 (Fla. 1st DCA 1958). No such showing was made in the instant case. The remaining allegations made in paragraphs 1, 3 and 4 of Petitioner's petition are not supported by any persuasive competent substantial evidence. Accordingly, these allegations are also without merit.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Architecture reject Petitioner's challenge to the failing grade he received on the Building Design section of the June, 1989, architecture licensure examination. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th day of April, 1990. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 1990.
