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 Whether Petitioner's application for licensure as a structural engineer should be approved. This case arose as a result of a determination by Respondent that Petitioner had not passed the reexamination for licensure as a structural engineer which was held on October 25, 1985. Petitioner contends that he was disadvantaged by the time allowed to study for the examination, the time taken to publish the results of the examination, the esoteric nature of a steel beam problem, and the design method required for a reinforced concrete structure. Respondent takes the position that Petitioner was not so disadvantaged, but that even if he were, it is not sufficient to increase his grade to a passing score. The respective contentions of the parties were embodied in a pre-hearing stipulation which was received in evidence as Joint Exhibit 1. Petitioner appeared at the hearing unaccompanied by legal counsel and was therefore advised of his rights and the procedures to be employed in the administrative proceeding. He indicated that he understood his rights and such procedures, and elected to represent himself. During the course of the hearing, Petitioner testified in his own behalf and submitted six exhibits which were received in evidence. Respondent presented the testimony of James A. Power, a consulting structural engineer and Allen R. Smith, Executive Director of the Board of Professional Engineers. In addition, Respondent submitted six exhibits in evidence, which were admitted. Petitioner's application for the Professional Engineer's Reexamination was received in evidence as Hearing Officer's Exhibit 1. The parties were given until September 2, 1986, in which to file any posthearing submissions. However, Respondent failed to file any such submission and Petitioner's written argument was untimely filed on September 3, 1986.
Findings Of Fact By application received by Respondent on August 13, 1985, Petitioner Max E. Lambie applied for the Professional Engineer's Reexamination to be held on October 25, 1985. The application reflected that Petitioner had previously passed the "Fundamentals" part of a previous examination on April 19, 1985, and that his application was to take the "Principles and Practice" part for reexamination in the discipline of structural engineering. By a letter dated August 21, 1985, Respondent acknowledged receipt of the application and applicable fees. (Hearing Officer's Exhibit 1) Petitioner thereafter received from Respondent's Office of Examination Services, a "Notice to Appear for October 24-25, 1985, Professional Engineer (PE) Examination." The notice included information that Part II of the examination was to be based on Professional Principles and Practice, and devoted primarily to the field of the applicant's ability to apply acceptable engineering practice to problems which are representative of the candidate's discipline. It further stated as follows: In the Principles and Practice portion of the examination, candidates are required to solve eight (8) problems; four (4) in the morning session and four (4) in the afternoon session, drawn from a test pattern generally set forth as follows: (H) STRUCTURAL: Structural Concrete, Structural Steel and Light Metal, Bridges or Bridge Elements, Wood, Masonry, Lateral Forces. The notice also stated that a passing grade on Part II of the examination was defined as a grade of seventy (70) or better, and that within approximately three (3) months after the examination date, the applicant would receive written notification of the examination results. (Petitioner's Exhibit 1) By a Memorandum from Allen R. Smith, Jr., Director, Board of Professional Engineers, dated September 20, 1985, applicants applying for licensure by examination in the structural engineering discipline were advised that the examination was now given once a year and that the schedule was October 24 and 25, 1985, and October 23 and 24, 1986. The Memorandum further noted that the Board of Professional Engineers had amended Rule 21H- 21.02, Florida Administrative Code, with regard to the discipline of structural engineering to require that applicants were required to answer questions dealing specifically with structural engineering, and that applicants must answer four out of six questions on the a.m. and four out of six questions on the p.m. portions of the Principles and Practice examination. Enclosures to the Memorandum reflected the subject matter and numbers of the examination questions. A copy of Chapter 21H- 21 of the Respondent's Rules, dated July, 1985, was attached to the Memorandum. Rule 21H-21.02(2) provided in part as follows: Part two of the examination shall be based on Professional Practices and Principles and shall be devoted primarily to the field of the applicant's finding solutions to problems designed to test the applicant's ability to apply acceptable engineering practice to problems which are representative of his discipline. Applicants for registration must select one of the listed specializations in which to be examined. . . . In Part Two of the examination the applicant will usually be required to solve from seven to ten problems which the applicant may choose from approximately twenty problems drawn from a test pattern generally set forth as follows: (h) STRUCTURAL--"Structural Concrete, Structural Steel and Light Metal, Bridges or Bridge Elements, Wood, Masonry, Lateral Forces." Finally, the Memorandum included an enclosure entitled "Design Reference Codes, Standards and Manuals" which listed various manuals and codes to be used as references for the review and use of applicants. The Southern Standards Building Code, Uniform Building Code, and Basic Building Code, had an asterisk after their listings. A note at the bottom of the listing stated "Use code with which you are familiar and/or currently using in your practice." One of the listings also was "Building Code Requirements for Reinforced Concrete, ACI 318- 83." It was not followed by an asterisk on the listing. (Petitioner's Exhibits 2-3) Petitioner took the October, 1985, examination which was a national examination produced by the National Council of Engineering Examiners (NCEE) and available for certification or licensure throughout the United States. Respondent's Rule 21H-21.01 provides that the examination "shall be provided by the National Council of Engineering Examiners (NCEE)." (Stipulation (Joint Exhibit 1), Petitioner's Exhibit 2, Testimony of Petitioner) Petitioner did not receive his examination grades until March, 1986. The uniform grade notice, dated March 21, 1986, advised him that his examination grade was 66.3 which was failing and that a minimum passing score was 70. The reason for the delay in mailing the examination scores was that one of Respondent's graders for a specific portion of the examination was unavailable due to illness or accident. (Testimony of Smith, Respondent's Exhibit 5) At the hearing, Petitioner testified that the late notification by Respondent that only questions on structural engineering would be on the October examination disrupted his preparation and left him insufficient time to adequately prepare for the examination. He testified that in prior examinations it was possible for a candidate to select questions not specifically related to structural engineering, such as economics, and that he had to "scramble" to obtain texts to study for new subjects. He also claimed that the note at the bottom of Respondent's Design Reference Codes, Standards and Materials (Petitioner's Exhibit 3) which had accompanied Respondent's September 20, 1985 Memorandum to applicants (Petitioner's Exhibit 2) was misleading in that he construed the note to permit him to use whatever building code he was familiar with, and that it was not until he arrived at the examination that he found out that he had made the wrong assumption in that regard. The facts show, however, that the prior examination taken by Petitioner was not solely in the structural engineering discipline, but was a Civil/Sanitary/ Structural examination. Further, Respondent's note on the listing of reference manuals clearly indicated that it applied only with respect to the Southern Standards Building Code, Uniform Building Code, and the Basic Building Code, and not to the other codes and manuals listed therein. (Testimony of Petitioner, Petitioner's Exhibits 2- 3, Respondent's Exhibit 3) Petitioner claimed that the examination contained questions requiring the application of building code requirements for reinforced concrete, ACI 318- 83, which had only been in effect for the past two years and was not familiar to applicants of his age group and past experience. He contended that he had to hurriedly prepare himself utilizing unfamiliar texts that had become available only a few months prior to the examination. ACI 318-83 deals with a concept called "ultimate strength design," but Petitioner was familiar with an older concept called "working strength design." He further claimed that the South Florida Building Code was based entirely on the latter concept. However, expert testimony presented by the Respondent showed that the ultimate strength design concept had been part of the ACI code since 1956 and always had been required in designing prestressed concrete members. He also testified that working strength design is still permitted as an alternative concept in ACI 318-83, that both the South Florida Building Code and Standard Building Code require conformance to ACI 318-83, and that such requirements have been in both codes for at least 25 years. Accordingly, it is found that Petitioner's claims that he was prejudiced by the use of ACI 318-83 in problems on the examination are without merit. In this regard, it is also noted that the April 19, 1985 examination required the use of the latest ACI code and one question required the use of the ultimate strength method. (Testimony of Petitioner, Tower, Respondent's Exhibits 1-6) Respondent also contended at the hearing that question no. 275 of the October, 1985 examination contained a typographical error which required assumption of a different criterion for the solution, and that his expenditure of time in resolving the situation resulted in a score of five out of a possible ten. However, no evidence was presented that his solution was incomplete or that the score awarded by the graders was incorrect. Petitioner brought the typographical error to the attention of the Board by a letter stating that the error induced "extraordinary anxiety which contributed to a loss of concentration" and asked that his observation be passed on to the NCEE. At the hearing, he claimed that past typographical errors on examinations had resulted in adjustment of score points and that such should have been done with regard to the error which he pointed out to Respondent. Again, however, it is found that there was insufficient evidence presented to establish that the error noted by Petitioner had affected the grading of his solution. (Testimony of Petitioner, Petitioner's Exhibits 5-6, Respondent's Exhibits 2, 6.) Petitioner's claim that the late grading of the examination precluded him from applying for the Spring, 1986 examination is found to be irrelevant to the question of his failure of the October, 1985 examination. Further, his complaint that the new structural examination is used only in six states and that Florida was one of the first states to adopt the new examination provides no grounds for relief. The Board's purpose in changing the examination format was due to the belief that structural engineers should be more qualified in that particular discipline. In any event, the new Board rule established such format and no challenge to the rule was filed by Petitioner. (Testimony of Petitioner, Smith)
Findings Of Fact Petitioner, William Everett Warriner, is an applicant for licensure by examination to practice architecture in the State of Florida. The architecture examination in the State of Florida consists of two parts, one of which is a written examination given in December of each year, and the other of which is a Site Planning and Design Test given in June of each year. Petitioner meets all requirements for admittance to the licensure examination. Petitioner took the Site Planning and Design Test portion of the National Council of Architectural Registration Boards (NCARB) in June, 1982. This portion of the examination is a twelve-hour sketch problem involving design and site consideration in which the applicant is graded on his or her design solution to the program requirements furnished, which are identical for each candidate at a given examination, on the basis or certain stated criteria, by trained graders who are registered architects. The examination is administered by the Department of Professional Regulation and is supplied to the State of Florida, as well as to all of the jurisdictions of the United States by NCARB. The examination involves the design of a structure, in this case a small municipal airport terminal building, by an applicant, including requirements for placing the structure on the site, elevations, facades, floor plans, and other aspects. The applicant is supplied with a preexamination booklet which sets forth the architectural program to be accomplished and the various requirements to which the applicant is expected to apply himself in order to receive a passing grade. At the time of the actual examination, the applicant is furnished other information to enable him to more adequately design the facility and demonstrate his command of the architectural requirements. In general, the examination was designed to require the applicant to design a solution to the site plan and the building design problems submitted to him by NCARB. The pertinent portion of the examination allows the examination graders to determine whether an applicant is able to coordinate the various structural design, technical aesthetic, energy, and legal requirements in order to resolve the design and site plan problem. The grading of the Site Planning and Design Test is accomplished by the review of the candidate's product by at least three architects selected by the various architectural registration boards of several states, who are given training by NCARB in an effort to, as much as is possible, standardize their conceptions of the minimal competence required for a passing grade. Each reviewer then assesses the product submitted by candidates/examinees on a "blind grading" basis, that is without knowledge of the identity or geographical origin of the submitter, or of the grade assigned the product by other reviewers/graders. The graders assess the product with a view toward identifying areas of strength or weakness within an overall determination of satisfaction and assign a holistic numerical score ranging from "0" (fail) to "4" (pass). Grades "1" (incomplete) and "2" (poor) are failing grades, and grades "3" (minimally acceptable) and "4" (good) are passing grades. If grades "1" or "2" are awarded, the graders are required to indicate the examinee's weakness, but these indications of weakness must not be arbitrary. All solutions are graded by three examiners, except those solutions to which a "0" has been given by one examiner. Solutions which are not clearly passing or failing are graded by a fourth examiner. In order for an applicant to pass, he must receive passing grades from at least two examiners, who independently grade his solution to the problem. A passing grade, as was stated above, is defined as a holistic grade of "3" or "4" as set forth in Rule 21B-14.04, Florida Administrative Code. Petitioner received a grade of "2", which is a failing grade, from each of the three graders who graded his examination. Though the Petitioner demonstrated an effort to comply with the criteria set forth in the examination and indicated in each area identified as weak on the examination grade report wherein he felt he had achieved the desired goal and standard, Mr. Burke, a registered architect and a member of the Florida Board of Architecture, identified several material areas wherein the Petitioner failed to observe program requirements. In the Site Planning and Site Design area, Petitioner has not shown any details as to how handicapped individuals would get across the median in the parking area in that there is no showing of a ramp from the pavement over the curb and across the median, nor is there any showing of lighting over the curbs for the handicapped. Further, on the issue of service area location, as drawn by Petitioner, this layout would require all service vehicles to pass in front of the airport through passenger traffic to get to the service cut for the service drive, which, in itself, is located too close to the baggage handling area. In addition, the site aesthetics were deficient in completeness and clarity in that landscaping was not shown, nor was appropriate consideration given to water flow and drainage. Additional deficiencies were demonstrated in the areas of building planning and design. The functional relationships of programmed areas were basically accomplished, but major problems exist in the general lobby area. While the test problem calls for the display area to be in the general lobby area, in Petitioner's solution, they are away from the ticket area and somewhat hidden. Those facilities which need exposure do not get it. Pedestrian circulation between the baggage claim area and the lobby exits is obstructed by the location of the car rental booths. In addition, traveling from the deplaning area on the second floor to the baggage claim area on the ground floor is made too difficult. The solution's conformity to barrier-free requirements is weak. There is little or insufficient protection from the elements at the entrances and exits. The solution's requirement for 74-foot trusses in the terminal creates excessive wasted volume in the attic area, and the overall form is awkward. In addition, one page of the problem is not completed, and emergency exits are not shown as required. In the section involving technical aspects of the plan, the first two sub-areas were marked weak primarily because of the incompleteness of the technical plan for the foundation. Further, only a very few technical notes appear on the solution, providing insufficient information, and the use of wood for a public building is dangerous. Petitioner disagrees with his grade and presented evidence to show that his failure was a marginal one. He feels he has rebutted approximately 75 percent of the failing items and passed the written part of the examination (Part B) on the first attempt. He has been involved in residential design for twelve years and has considerable experience. He feels the comment on the handicap ramps is valid, but that is only one part of the problem. There is sufficient other provision made for the handicapped in his solution. The lobby displays would have the least likelihood of being seen if placed in the ticket area as suggested. He opines that the covered walkways over the two major entrances are sufficient, and it would be superfluous to have covers over every door. Repeated rebuttal, such as those items listed, display Petitioner's difference of opinion with the grade assigned his problem, but not that his examination was graded in an arbitrary or capricious way or in a manner different than that utilized in grading the examination of every candidate taking the same examination throughout the United States. Also, his excuse for incompleteness that he only had twelve hours in which to complete the problem is invalid. The same time was allotted all candidates, including those who passed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED: That a final order be entered finding that Petitioner has failed to achieve a passing score on the June 1982 architecture examination and upholding the grade awarded to Petitioner on that examination. RECOMMENDED this 3rd day of January, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 3rd day of January, 1983. COPIES FURNISHED: John J. Rimes, III, Esquire Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32301 Mr. William Everett Warriner 305 North East Fifth Avenue Gainesville, Florida 32601 Mr. Herbert Coons, Jr. Executive Director Board of Architecture Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Petitioner is the state agency charged, in conjunction with the Land Surveying Licensing Board, with the responsibility to prosecute Administrative Complaints pursuant to Chapter 472, 455 and 120, Florida Statutes, and the rules promulgated pursuant thereto. At all times material to the Administrative Complaint, Respondent, Lars Dohm, was licensed as a land surveyor in the State of Florida, having been issued license number LS0002358. Nona Chubboy, in January 1989, was the owner of a lot described as Lot 25, Block J, Tierra Verde, Unit 1, Fourth Replat, Pinellas County, Florida, also known as 727 Columbus Drive East, Tierra Verde, Florida. Ms. Chubboy intended to build a dwelling on the lot, and secured building plans for the dwelling. She was to be her own contractor. In early 1988, she brought the building plans to the Respondent, and asked him to stake out only the lot at that time. Respondent copied the dimensions of the lot and dwelling from the building plans, and returned them to her. In early 1989, Respondent was retained to do a stakeout survey of the house and lot. Respondent requested that a site plan be prepared. Mrs. Chubboy secured it from the house designed, and delivered it to the Respondent. 6 The site plan shows a set back of 20 feet to a series of dotted lines, then a total of the length of the building from front to back of 63 feet, and footage of 37 feet to the rear of the property, which totals the exact distance of the length of the lot, 120 feet. With the site plan and the dimensions of the foundation of the building in his possession, the Respondent proceeded to stake out the foundation of the dwelling on or about January 10, 1989, and prepared a stakeout survey, thereafter. Construction began almost immediately on the project upon the completion of Respondent's stakeout. The masonry work was completed, and the framing of the home began. On or after January 23, 1989, Mrs. Chubboy was concerned the dwelling was too close to the street, and she measured the distance between the foundation and the street. She found it to be set back 20 feet and not 24 feet as intended. As prescribed by Pinellas County, the front set back in the zoning category for 727 Columbus Drive East was 20 feet. Such restriction would preclude the construction of a four foot in depth balcony supported by vertical columns as planned by Mrs. Chubboy in the setback area. Pinellas County did permit her to put in three foot deep balconies but without vertical columns. Mrs. Chubboy was required to redesign the front portions of the second floor of her home by adding beams for balcony supports, because vertical columns could not be used for support. These changes added to the cost of construction. The balconies constructed were not as functional as originally designed and resulted in their restrictive use. On or after January 23, 1989, Respondent provided Mrs. Chubboy with a signed, sealed and certified stakeout survey dated January 23, 1989, showing that the foundation was staked 20 feet from the front of the property, and further indicated that the building stakeout was 59 feet in depth. However, this is at variance with the site plan showed a total building length of 63 feet. When Respondent was confronted with the discrepancy between the actual stakeout and the site plan, he indicated that Mrs. Chubboy should have checked his work, and he was not going to do anything about the discrepancy. The stakeout survey contained the dimensions of the foundation layout, as contained in the building plans (59 feet), which were not contained in the site plan (63 feet). The as-built survey showed where the building was actually constructed, and the foundation was constructed exactly where Respondent staked the foundation. The site plan was inconsistent with the stakeout survey. The site plan clearly shows that the stakes should have been placed 20 feet from the front of the lot to a projection on the building, and the building should have a 63 foot depth from that point. The back of the lot was shown as 37 feet, which totals the length of the lot or 120 feet. The total dimensions of the building could not have been laid out from the site plan, as there is insufficient information on the site plan to give proper dimensions for the building. The dimensions of the building staked out were in accord with the dimensions on the building plan, as evidenced by the stakeout survey. The site plan does conflict with the building plan, as the site plan shows the layout of the building from front to back totals 63 feet. However, it also includes a projection which was intended to represent the second floor balconies in dotted lines. The stakeout survey indicates that the building length was 59 feet. In any event, the back of the building in the site plan is 83 feet from the front of the lot, but as it was staked, it was 79 feet. A skillful surveyor exercising ordinary prudence should have ascertained from the site plan and dimensions on the building plans that there was a 20 foot setback to a vague object. If you then examine the 63 feet shown on the site plan, and sketch out the 59 feet shown on the building plan, there is a four foot discrepancy between the 20 foot setback and where the building is supposed to start. The site plan was vague, and a skilled surveyor would have contacted his client for more specific information, and under such circumstances, should not have proceeded with the job until he had more specific information. A contractor or property owner has a right to rely on the professional ability of a surveyor to stake out the building site in accordance with the site plan or building plan. It is not the client's responsibility to check on the accuracy of the work of a professional. The purpose of a building's stakes is to mark the corners of the building in such a manner that construction can proceed from the stakes. The stakes were not to be moved. An "envelope-type" stakeout is a stakeout where the builder is free to move the building around. It is used where expert builders set their own offsets. It is not the type of stakeout required here. Such stakeouts were not for use by a person of Mrs. Chubboy's experience, nor is it indicated that Respondent was asked to do anything but stake specific corners. Respondent's assertion that the offset stakes were set so that the building could be moved is not credible. The "as-built" survey indicated that the building was placed directly where the stakes were placed by Respondent. Respondent further indicated that he was aware of the discrepancy of four feet between the building plan and the site plan, and chose to proceed with staking the house with a 20 feet set back and 59 feet in depth which added four feet to the back yard. This error by Respondent constitutes negligence.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED: That Respondent pay an administrative fine of $1,000. That Respondent be placed on probation for one year subject to such reasonable conditions as the Board may specify. DONE AND ENTERED this 21st day of May, 1992, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 1992. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11(in part), 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 30, 31, 32, 33. Rejected as not supported by clear and convincing evidence: paragrahs 11(in part: cost of change orders in the design of the home), 12, 13, 34. Rejected as argument: paragraph 28, 29 Respondent's proposed findings of fact. Accepted in substance: paragraphs 1, 2, 3(in part), 5. Rejected: paragraph 3(in part), 4, 6. COPIES FURNISHED: William S. Cummins, Esquire Senior Attorney Department of Professional Regulation 1940 N. Monroe Street Tallahassee, FL 32399-0792 Angel Gonzalez Executive Director Board of Professional of Land Surveyors 1940 N. Monroe Street Tallahassee, FL 32399-0792 Jack McRay, Esquire General Counsel 1940 N. Monroe Street Tallahassee, FL 32399-0792 Mr. Lars Dohm Apartment #611 5790 34th St. St. Petersburg, FL 33711
The Issue Whether Petitioner should be granted additional credit for one or more examination questions answered by him during the June 1990 Certified Building Contractor Examination.
Findings Of Fact Petitioner sat for reexamination at the June 1990 certified building contractor examination. On Part II, he received a score of 74.0. A minimum passing score is 69.01. On Part III, he received a score of 67.00. Minimum passing score is 69.01. Petitioner had previously passed Part I of the exam. Petitioner initially challenged question numbers 4, 10 and 17. The National Assessment Institute prepares licensure examinations for building contractors in the State of Florida under authority of the Office of Examination Services, Department of Professional Regulation. The Institute prepared question numbers 4, 10 & 17 for the certified building contractor examination administered on June 26 and 27, 1990. As to question number 4, the only correct response to the question was answer "B". Petitioner's answer to the question was "D", which was not acceptable. As to question number 10, the correct response was answer "C". Petitioner's answer "B", was not acceptable. As to question number 17, the correct response was answer "C". Petitioner's answer "A" was not acceptable. The Department's determination that answers "B", "C" and "C" were the only appropriate answers was not arbitrary and unreasonable.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the challenge by Petitioner that he be awarded a passing grade for Part III of the June 1990 certified building contractors examination be DENIED. DONE AND ENTERED this 19th day of April, 1991, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1991. COPIES FURNISHED: Robert J. Uebelacker 326 NW Catherine Avenue Port Charlotte, FL 33952 Vytas J. Urba, Esquire Senior Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Daniel O'Brien, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Jack McRay, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Petitioner Claudio Ricardo Ramos was a candidate on the 1982 Architecture Design and the Site Planning Examination administered on June 14- 16, 1982 by the Department of Professional Regulation. He is a graduate of the University of Miami with a Bachelor of Architecture Degree and is presently employed by an architecture firm in Miami, Florida. On September 10, 1982 Petitioner was informed by the Department that he had received a failing grade on Part A of the examination. After a review of his examination he requested a formal hearing to contest his failing grade. That request initiated these proceedings. The professional architecture examination consists of two parts, Part A and Part B. Part A is known as the site planning and design portion of the exam. It requires a candidate to draw a solution to a problem involving (a) site plans, (b) floor plans, (c) building sections, (d) two significant building elevations, (e) diagrams of structural systems, (f) diagrams of environmental control systems, and (g) a typical wall section. Part A is blind-graded by at least two examiners designated and approved by the Department. Each examiner judges the individual applicant's entire work product pursuant to evaluation criteria set out in Section 21B- 14.03(1), Florida Administrative Code. Grades ranging from 1 through 4, depending on the quality of the work, are awarded by each examiner. An applicant must have a minimum average of 3 in order to pass Part A of the examination. On the June 1982 examination, all candidates were required to design a small municipal airport terminal building in a midwestern location. The problem required a site plan, ground level plan-north elevation, second level plan, and a cross-section of the facility. While Petitioner demonstrated on his examination that an effort had been made to comply with the instructions set out in the examination and preexamination booklet, he failed in several significant areas to design a structure consistent with the program's requirements. His design for the terminal failed to fit the criteria for floor areas, entrance- exist requirements, circulation pattern through enplaning and deplaning and to comply with the required structural and mechanical details. These deficiencies in Petitioner's design cannot be explained as merely a difference in professional judgment. They are fundamental mistakes which in some respects make his design functionally unsound. It is apparent from Petitioner's design that he spent a considerable portion of his allotted time on the ground level of the airport terminal design and then was without adequate time to prepare the second level plan and integrate that plan with the ground level. Petitioner has failed to present evidence showing that the failing grade he received was given in a capricious or arbitrary manner. Petitioner's grade was well within the range of reasonable professional judgment on what is an unsuccessful performance of the Part A examination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Board of Architecture enter a Final Order denying the application of Claudio Ricardo Ramos for licensure as an architect on the grounds that he failed to successfully pass Part A of the architecture examination. DONE and RECOMMENDED this 7th day of April, 1983, in Tallahassee, Florida. MICHAEL PEARCE DODSON 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 7th day of April, 1983. COPIES FURNISHED: Claudio Ricardo Ramos 140 Northwest 87th Avenue Apartment G-222 Miami, Florida 33172 John J. Rimes III, Esquire Assistant Attorney General Department of Legal Affairs The Capitol, Room LL04 Tallahassee, Florida 32301 Herbert Coons, Jr., Executive Director Florida Board of Architecture Old Courthouse Square Building 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Certain stipulations of fact were entered into by Petitioner and Respondent and accepted by the Hearing Officer. Those stipulations of fact are set forth below as Findings of Fact in this cause: "Petitioner, CHRISTINE DIANE ZARLI, [McDonough] is an applicant for licensure by examination to practice architecture in the State of Florida. The architecture examination in the State of Florida is of two (2) parts, one of which is the written examination given in December of each year and the other of which is a site and design (sic) [Part (a)] which is given in June of each year. Petitioner has met all requirements for admittance to the licensure examination." "Petitioner took the design and site plan portion of the National Architecture Examination in June, 1981. This portion of the examination consist (sic) of a twelve (42) hour sketch problem involving design and site considerations. 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 of the jurisdictions of the United States by the National Council of Architectural Registration Boards (NCARB). The examination itself as noted above involves the design of a structure by an applicant including requirements for placing the structure on the site, elevations, building cross-sections, facades and floor plans." "Information supplied to the applicant includes a preexamination booklet setting forth the architectural program to be accomplished and the various requirements to which the applicant is expected to apply himself (sic) in order to receive a passing grade. At the time of the examination itself, other information is supplied to the applicant to enable him (sic) to more adequately design the structure requested and perform the necessary technical architectural requirements. In general, the purpose of the examination is to require the applicant to put together a design and site plan solution in response to a program submitted to him (sic) by NCARB. This portion of the examination, therefore, allows the national testing service grading the examination and through them the Florida Board of Architecture to determine whether the applicant is able to coordinate the various structural, design, technical, asthetic, energy and legal requirements which are tested in written form in the other portion of the examination given in December of each year." "The grading of the site and design problem is accomplished by the review of the applicant's product by at least three (3) architects selected by the various architectural boards of some twenty (20) states who are then given training by NCARB to standardize their conceptions of the minimal competence required for a passing grade. Each architect-grader is then asked to review various solutions submitted by applicants on a blind grading basis. That is, the grader has no knowledge of the name or state of origin (sic) of the solution which he is grading. The grader is instructed to take into consideration various criteria as set forth in Rule 21B-14.03, F.A.C. Graders are instructed to make notations for areas of strength and of weakness on the grading criteria and then are to determine, based upon an overall conception of the applicants (sic) submission, whether or not a passing grade of three (.3) or four (4) as set forth in Rule 21B-14.04, F.A.C. (sic) [has been achieved]. In order for an applicant to pass he must receive at least two (2) passing grades from the three (3) architects who independently grade the applicant's submission. [That is, at least two of the three graders must have scored the applicant with a passing score.]" The architects chosen as graders by the NCARB for the design and site plan portion of the examination are required to participate in an extensive exercise designed to achieve uniformity in grading by all graders. The graders are instructed to review the solutions of the applicants quickly for an overall impression. They are further directed to score the solution on the basis of that first impression. They are specifically asked not to regrade solutions or to analyze specific points of presentation. The graders are instructed that the grading concept is a holistic concept and that the basic assumption of that holistic grading concept is that each of the factors involved in design skills is related to all the other factors and that no one factor can be separated from the others. The graders are instructed that they must judge each solution as a whole grading the solution for their impression of its totality. They are told that an examinee is entitled to make some mistakes, recognizing that the problem is hurriedly executed in a tense situation, without recourse to normal office reference materials and without the customary time for deliberation and critique by others. The graders are directed to give each solution a holistic score of 1, 2, 3, or 4. 1 is Very Poor (failed), 2 is Poor (failed), 3 is Minimally Acceptable (pass), and 4 is Good (pass). No evidence has been presented in this proceeding from which it can be concluded that the instructions to the graders and the rules for the administration of this test were not followed. Thus, it is found that the three graders who graded Petitioner's solution did not know Petitioner's identity nor her state of origin and did not know, at the time they graded her solution, the grade placed on that solution by their fellow graders. Each of the three graders independently assigned a score of 2, or Poor and failing, to Petitioner's solution. Although testimony was presented with regard to the strengths and weaknesses of certain specific elements of Petitioner's solution, no evidence was presented from which it can be found as a matter of fact that the solution, when considered holistically, was deserving of a grade higher than that assessed by the three independent graders.
Findings Of Fact Petitioner sat for the June 1990 certified building contractor examination. On Part II, he received a score of 68.0. A minimum passing score is 69.01. On Part III, he received a score of 71.00. Minimum passing score is 69.01. Petitioner had previously passed Part I of the exam. Petitioner initially challenged question numbers 6, 13 and 14. Upon completion of the testimony, Petitioner withdrew his challenges to question numbers 13 and 14. The National Assessment Institute prepares licensure examinations for building contractors in the State of Florida under authority of the Office of Examination Services, Department of Professional Regulation. The Institute prepared question number 6 for the certified building contractor examination administered on June 26 and 27, 1990. Question number 6 tested the candidate's ability to calculate the time necessary for a crew to excavate, form and pour concrete for a reinforced concrete curb and gutter in a parking area and have it inspected. The candidate was asked to select the earliest date that concrete can be scheduled to be poured. Four dates were given: (A) June 11, (B) June 13, (C) June 15, and (D) June 18, 1990. The Institute determined that the only correct answer was: (D) June 18, 1990. The Petitioner selected: (C) June 15, 1990. Part of the instructions to the examination candidates stated: "The inspection request will NOT be called in the day the work is completed." The evidence was undisputed that preliminary calculations indicate with regard to question 6 the mathematical approach to the solution demonstrates that the work will take nine days (rounded up), starting June 1 and completed on June 13, and, therefore, the inspection is to be called in on Thursday, June 14, 1990. The third paragraph of the question states: Inspections have been taking one day from the time the inspection is called in until the time the inspection is completed. Inspections can NOT be called in or performed on Saturdays or Sundays." The first sentence of the fourth paragraph states: "The concrete is to be placed the day after the inspection is completed." (Emphasis supplied) The Department's position is that the plain language of the question indicates that it would take one day or 24 hours from the date the request for inspection was called in (June 14) until the inspection was completed which would be June 15. Since the instructions were clear that the concrete cannot be poured on the same day the inspection is completed or on Saturdays or Sundays, then the earliest date that the concrete can be scheduled is Monday, June 18, 1990, or answer (D). The Petitioner argues that it is not uncommon in the construction industry to "call in" an inspection in the morning and have it completed on the same date (in one day). Therefore, since it is undisputed that the inspection is to be "called in" on Thursday, June 14, that it was reasonable and logical for him to conclude that the inspection would also be completed the same date. Since the question instructed that the concrete is to be placed the day after the inspection is completed, he selected answer (C), June 15, 1990 (a Friday) as the correct answer. The Department does not dispute that it is common practice in the construction industry for an inspection to be called for and completed in one day. The Department's determination that answer (D) was the only appropriate answer was arbitrary and unreasonable.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner be awarded four points for his answer to question number 6 of Part II of the Certified Building Contractor examination for June, 1990. Petitioner be awarded a passing grade for Parts II and III of the examination. DONE AND ENTERED this 28th day of March, 1991, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 1991. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: paragraphs 1,2,3,4,5,6,7,10 Rejected as argument: paragraphs 8,9 Respondent's proposed findings of fact. Accepted in substance: paragraphs 1,2,3(included in Preliminary Statement), 4(in part),5. Rejected: paragraph 4(in part, as against the greater weight of the evidence and argument), 5 and 6(challenge withdrawn) Copies furnished: George Solar 1302 West Adalee Street Tampa, Florida Vytas J. Urba, Esquire Senior Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Daniel O'Brien, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Jack McRay, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
