Findings Of Fact In June 1987, petitioner, Karl T. Christiansen, was an examinee on Sections 3, 4 and 5 of the Uniform National Examination for landscape architects. He had previously passed Sections 1 and 2 in the June, 1986 examination. The test is administered by the Office of Examination Services of the Department of Professional Regulation, and licensure is granted by respondent, Board of Landscape Architects. The examination in question is a uniform multi-state examination adopted for use in Florida. The questions are prepared by the Council of Landscape Architectural Registration Boards. The same organization also prepares a comprehensive Evaluation Guide for use by graders in scoring the test. All Florida graders must be professional landscape architects with at least five years' experience. In addition, they are given training by the Office of Examination Services before grading the examination. After the examination was completed by the candidates, all examinations, including that of Christiansen, were blind-graded by the graders using the Evaluation Guide as a tool. By notice dated October 23, 1987, petitioner was advised by the Office of Examination Services that he had received the following scores on Sections 3, 4 and 5 of the examination: Design Application 84.4 PASS Design Implementation 70.8 FAIL Florida Section 76.2 PASS On December 14, 1987, petitioner was given an opportunity to meet with Board representatives in Tallahassee and present objections concerning his score on Section 4 of the examination. Because of Christiansen's concerns, the Board regraded his examination a second time and raised his overall score from 70.8 to 72.4. This was still short of the 74.5 needed for passing. After being given the results of the second grading, petitioner requested a formal hearing. At hearing petitioner lodged objections to scores received on twenty- one questions in Subparts A, B and C of Section 4 of the examination. These objections are contained in joint composite exhibit 1 received in evidence. It was Christiansen's position that the graders had used subjective standards in evaluating his solutions, and that they had failed to take a sufficient amount of time to evaluate his answers. In addition, Christiansen contended that the examiners had failed to note a number of correct answers for which he was not given credit. Other than his own testimony, petitioner did not present any other evidence to support his contentions. Indeed, his own witness, a Fort Lauderdale landscape architect with thirty years experience, concluded that the Board was correct in failing Christiansen and that Christiansen had not demonstrated adequate competence on the examination to justify a passing grade. In support of its position, respondent presented an expert, Michael Oliver, a longtime registered landscape architect with three years experience in grading this type of examination. In preparation for the hearing, Oliver reviewed the examination, instruction booklet and grader's Evaluation Guide. He then regraded petitioner's examination and assigned it a score of 73.4, which was a failing grade. In doing so, Oliver assigned higher scores than did the previous two graders to certain questions but lower scores to others, for an overall average of 73.4. Through a detailed analysis, Oliver pointed out the infirmities in each of Christiansen's objections and why an overall failing grade was appropriate. It was demonstrated by a preponderance of evidence that, where petitioner had not received the desired grade, he had misinterpreted the instructions, prepared unsafe designs, failed to satisfy all criteria, or gave incorrect answers. Therefore, petitioner's grade should not be changed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered by the Board denying petitioner's request to receive a passing grade on section 4 of the June, 1987 landscape architecture examination. DONE AND ORDERED this 23rd day of May, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1988.
Findings Of Fact The Petitioner was an applicant for licensure as a landscape architect in the State of Florida, and he took the licensure examination on June 14th and 15th, 1982. The Petitioner passed one part of this examination, Landscape Architecture Design, with a score of 75, but he failed History of Landscape Architecture, Professional Practice, and Design Implementation. The only part of the exam the Petitioner challenges is Design Implementation for which he received a final grade of 73. His initial Score was 69, but after a review and reevaluation of his designs by the consultant, points were added to his score which brought it up to 73. A score of 75 is required in order to pass the examination. The landscape architecture examination is a national examination, developed and administered by CLARB, Council of Landscape Architectural Registration Boards. The Design Implementation section of the exam is approximately 50 percent of the examination, and is graded by a team of landscape architect experts who have been trained by CLARB in a one-day seminar regarding their responsibilities and evaluation standards. There is always a minimum of two evaluators for each examination. Candidates are identified only by a candidate number, which maintains their anonymity. CLARB utilizes a statistical process to measure the differences among evaluators to eliminate the very hard graders and the very easy ones. In order to arrive at a raw score, CLARB collects all of the examination grades from the entire nation and determines a median score. This is utilized to calculate a coefficient for each individual state that determines the value of each point. The Petitioner was graded on three separate drawings. These drawings were graded by the evaluators for the State of Florida and Petitioner was given a grade of 69. The Petitioner reviewed his examination and made objections to the score given on drawings 1 and 2. These drawings and the Scores given were reviewed by the consultant. addition, the consultant reviewed each one of the scoring items on all three drawings to ensure proper grading Professional judgment must be utilized in grading these examinations, because they are landscape architecture drawings; therefore, the evaluators are professional landscape architecture experts, as is the Department's consultant. The Petitioner's drawings did not meet the Standards set by CLARB for minimal competency in the area of landscape architecture. For example, he did not place elevation figures in proper places, he failed to indicate grades where they were poised to be indicated, he did not show proper contours, and he did not clearly preserve all trees as required by the examination guidelines. Certain grading criteria in the Design examination where cumulative, in that each level must have been completed before the next level could be attained. This resulted in low grades for the Petitioner on some of the criteria. The Petitioner's drawings showed a lack of minimal competency, in that he was not clear and precise in the location of grades and contours, and left vague areas that could be misinterpreted by contractors or surveyors. The Petitioner's testimony consisted largely in going over the parts of the drawings in question, and pointing out areas where he contended more credit should have been given. However, insufficient real evidence, as opposed to the opinion of the Petitioner, was presented to support a finding of fact that his examination score should be upgraded more than was already done. The Petitioner's expert witness had been the Petitioner's employer for two years and, although he supported the Petitioner's contentions that the score on his drawings should be upgraded, the Petitioner's expert had no prior experience in the grading of examinations. Thus, his conclusions were unpersuasive, and have not been found as facts.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of law, it is RECOMMENDED that the application of Augustus A. Perna, Jr., for licensure as a landscape architect be denied, based on his failure to achieve a passing grade on the June, 1982, examination. THIS RECOMMENDED ORDER entered on this 27th day of September, 1983, in Tallahassee, Florida. WILLIAM B. THOMAS 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 27 day of September, 1983. COPIES FURNISHED: Augustus A. Perna 6850 S. W. 40th Street Miami, Florida 33155 Drucilla E. Bell, Esquire 130 North Monroe Street Tallahassee, Florida 32301 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Herbert Coons, Jr. Executive Director Department of Professional Regulation, Board of Landscape Architecture 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.
The Issue The issue for determination in this proceeding is whether Petitioner is entitled to licensure by endorsement as a landscape architect without examination pursuant to Chapter 481, Florida Statutes.
Findings Of Fact Background Petitioner has been licensed in the State of Tennessee as a landscape architect since 1973. Petitioner was issued his license in Tennessee without examination and without completing a professional degree program in landscape architecture. Petitioner was issued a license in Tennessee pursuant to a grandfather clause in that state's licensure requirements. On August 29, 1988, Petitioner submitted an application to the State of Florida, Department of Professional Regulation, Board of Architects (the "Department") for licensure by endorsement as a landscape architect. Respondent denied Petitioner's application for licensure by endorsement on October 17, 1988, but certified Petitioner as eligible to take the written examination for licensure. Petitioner requested a formal hearing on November 9, 1988. The matter was placed on the agenda for the next meeting of the Board of Landscape Architecture (the "Board"). The Board denied Petitioner's application for licensure by endorsement on February 17, 1989. 1/ The Board, however, approved Petitioner to take the written examination as a so-called ". . . six- year candidate." 2/ Petitioner had at least six years of practical experience of a grade and character that was satisfactory to the Board for the purpose of taking the written examination. 3/ The Executive Director of the Board advised Petitioner by letter dated March 28, 1989, that the Board had approved Petitioner to take the examination required in Section 481.309 as a result of Petitioner's experience. Petitioner sat for and successfully completed the state portion of the examination required in Section 481.309, Florida Statutes. The examination required in Section 481.309 includes both a national portion and a portion concerning ". . . the specialized aspects of the practice of landscape architecture in Florida" (the "state portion" ). 4/ Petitioner requested to be scheduled for the state portion of the examination on April 24, 1989. Respondent sent Petitioner an acknowledgement of the request to be scheduled for the state portion of the examination on June 12, 1989. Petitioner achieved a score of 85 on the state portion of the examination. The Department notified Petitioner on January 15, 1990, that he had passed the exam and that his application for licensure had been approved by the Board. The notice of Petitioner's passing grade required Petitioner to submit a registration fee of $225. Petitioner tendered the required registration fee in accordance with the notice. The Department subsequently returned the registration fee with a letter notifying Petitioner that the Department had made an error. The Department determined that Petitioner had passed only the state portion of the examination. Petitioner did not take the national portion of the examination. The national portion of the examination is prepared by the Council of Landscape Architectural Registration Boards ("CLARB"), is very technical, and is aimed at college graduates with technical training. Petitioner believed that the likelihood of completing the national portion of the examination successfully was not great. Petitioner could not take the oral examination offered by CLARB as an alternative to the national portion of the written examination because CLARB requirements at the time required Petitioner to reside in Tennessee, i.e., the state in which he was licensed. After the Department returned the registration fee with a letter notifying Petitioner that the Department had made an error, Petitioner again requested an administrative hearing on June 25, 1990, and on August 23, 1990. On October 5, 1990, the Petitioner's request for licensure by endorsement came on to be heard as an agenda item before the Board and, after discussion, was denied. On October 10, 1990, Respondent notified Petitioner that his request for licensure without examination was denied and the Petitioner was afforded the right to request an administrative hearing. On October 29, 1990, and on November 1, 1990, through counsel, Petitioner requested a formal administrative hearing. Criteria For Licensure The criteria for licensure in Florida and Tennessee were not substantially identical when Petitioner was issued his license in Tennessee in 1973. Florida and Tennessee generally required each applicant to demonstrate his or her competency by written examination. 5/ In order to sit for the examination in Florida, an applicant was required to have completed four years of high school and either: have been graduated from a nationally accredited college or university offering an approved curriculum in landscape architecture; or have no less than 11 years of practical experience satisfactory to the Board. Conversely, an applicant could sit for the examination in Tennessee with seven years of practical experience in lieu of a college degree. 6/ Petitioner did not satisfy the requirements for exemption from examination pursuant to the reciprocity provisions in effect in Florida in 1973. The Board was statutorily authorized to exempt an applicant who held a license issued by another state if the out-of-state license was issued upon examination and if the requirements for the out-of-state license were the full equivalent of the requirements in this state at the time the out-of-state license was issued. 7/ Petitioner's license was not issued to him in Tennessee upon examination. For the reasons stated in the preceding paragraph, the requirements for the Tennessee license were not the full equivalent of the requirements in Florida. Standards prescribed in the grandfather clauses in Florida and Tennessee in 1973 were not substantially identical. Both Florida and Tennessee had statutory provisions in effect in 1973 which exempted applicants in each state from the criteria for licensure if such applicants satisfied the practical experience standards prescribed in the respective statutory provisions ("grandfather clauses"). The grandfather clause in Florida required the applicant to have one year experience and to apply for licensure within six months of the date of enactment of the grandfather clause. The grandfather clause in Tennessee authorized that state's board to license without written examination any applicant who was practicing landscape architecture at the time the Tennessee law was enacted, who had experience satisfactory to the board, and who applied for licensure without examination within one year of the effective date of the Tennessee grandfather clause.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is recommended that Respondent enter a Final Order determining that Petitioner is not eligible for licensure by endorsement as a landscaper architect. DONE and ENTERED this 16th day of September, 1991, in Tallahassee, Leon County, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of September, 1991.
Findings Of Fact Maribel Mackey is the sole proprietor of Petitioner Maribe1 Mackey Landscaping. As a woman of Hispanic heritage (Cuban), she falls into two of the presumptive categories of socially and economically disadvantaged individuals. Petitioner is a landscaping company started in April, 1990, by Maribel Mackey as its sole owner. The company does not itself perform either irrigation or sod work as was sworn to on its application; rather, it subcontracts those items of work when they are required under a contract. Petitioner conducts business out of the home of Maribel and Robert Mackey at 5032 S.W. 121 Avenue, Cooper City, Florida. Robert and Maribel Mackey were married in March, 1988. Maribel Mackey had no prior experience in the landscaping business prior to starting her business. Robert Mackey is the sole shareholder of a landscaping company known as Robert Mackey Landscaping, Inc., incorporated in 1988. Prior to the formation of that business entity, Robert Mackey was the sole proprietor of Robert Mackey Landscaping from approximately 1982 to 1988. In total, Robert Mackey has been in the landscaping business for approximately 17-18 years. Robert Mackey also conducts his 1andscaping business out of the home he shares with Maribel. Both businesses share the same office in the Mackey home and share the same office equipment, which includes: a desk, a phone (which doubles as their home phone), a file cabinet, a copying machine and a fax machine. Robert Mackey acts in more than an advisory capacity with Petitioner. Robert Mackey also assisits Maribel Mackey with bid estimating and in the supervision of field operations. Robert Mackey has also helped Maribel Mackey Landscaping to obtain credit for the purchase of landscaping supplies at nurseries and in the leasing of equipment used in the landscaping business. Robert Mackey performed and/or assisted Maribel Mackey in putting together a Proposal on the Kathcar Building. The original of this Proposal was done on a form of Robert Mackey Landscaping and was signed by Robert Mackey. The copy forwarded to the Department and admitted as an exhibit during the final hearing had been altered to reflect Petitioner's name and the signature of Maribel Mackey had been added to that of Robert. Robert and Maribel Mackey maintain a line of credit in the amount of $100,000. This line of credit is available to both of them for either personal or business purposes and requires both signatures. This line of credit is secured by a mortgage on the Mackeys' personal residence. Maribel and Robert Mackey have an informal, oral agreement not to compete with each other in the landscaping business. Maribel Mackey is prepared to forfeit substantial profits on behalf of Petitioner by referring potential landscaping jobs to her husband's company. Maribel and Robert Mackey, as part of this agreement, have agreed that Petitioner will concentrate exclusively on public or government projects, while Robert Mackey Landscaping will concentrate exclusively on private projects. Petitioner has, however, done private work, and Robert Mackey Landscaping has done public work and currently has a bid in on another public project. In addition, Maribel Mackey's business card states on its face that Petitioner performs "residentia1 and interior" work. Petitioner is currently certified as a Women's Business Enterprise and/or a Minority Business Enterprise with the following governmental entities: Broward County, The School Board of Broward County, and Palm Beach County. Broward County, in its evaluation of Petitioner's application to be certified as a WBE/MBE, did not visit Petitioner's place cf business to conduct an on-site interview with Maribel Mackey. Broward County, when it certified Petitioner as a WBE/MBE, did not know that Petitioner shared the same office space and equipment with Robert Mackey Landscaping. Broward County also did not know that Robert Mackey had his own landscaping business or that he had been in the landscaping business for approximately 17-18 years.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner Maribel Mackey Landscaping certification as a Disadvantaged Business Enterprise. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of January, 1991. LINDA M. RIGOT Hearing Officeer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1991. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-5830 Petitioner's proposed findings of fact numbered 1-3 and 5 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 4 and 6-8 have been rejected as not being supported by the weight of the credible evidence in this cause. Petitioner's proposed findings of fact numbered 9-11 have been rejected as not constituting findings of fact but rather as constituting argument. Respondent's proposed findings of fact numbered 1-15 have been adopted either verbatim or in substance in this Recommended Order. COPIES FURNISHED: William Peter Martin Assistant General Counsel Department of Transportation 605 Suwannee Street, M.S. #58 Tallahassee, Florida 32399-0458 Maribel Mackey 5032 Southwest 121 Avenue Cooper City, Florida 33330 Ben G. Watts, Secretary Department of Transportation 605 Suwannee Street, M.S. #58 Tallahassee, Florida 32399-0458
Findings Of Fact Petitioner is an unsuccessful candidate for the landscape architects examination given in June, 1990, (the "examination"). Petitioner achieved a passing grade on Sections 2 and 5 of the examination but failed Sections 3 and 4. Petitioner received a score of 72.8 percent on Section 3 of the examination. The minimum passing score is 75 percent. At Petitioner's request, Respondent regraded Petitioner's answers to Section 3 of the examination. Petitioner's score upon regrade was 73 percent. Petitioner needs 2 percentage points to pass Section 3 of the examination. Petitioner received a score of 54.3 percent on Section 4 of the examination. The minimum passing score for Section 4 of the examination is 75 percent. At Petitioner's request, Respondent regraded Petitioner's answers to Section 4 of the examination. Petitioner's score upon regrade was 60 percent. Petitioner needed 25 percentage points to pass Section 4 of the examination, but waived his challenge to Section 4 during the formal hearing. Petitioner was given proper credit for his answers to Section 3 of the examination. Petitioner should have received and received a score of 73 percent when Respondent regraded Petitioner's answers to Section 3 of the examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's challenge to the score he received for Section 3 of the landscape architect examination given in June, 1990. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 24th day of September 1991. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of September 1991. APPENDIX TO RECOMMENDED ORDER Respondent has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. No notation is made for unnumbered paragraphs. Petitioner did not submit proposed findings of fact. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection Accepted in Finding 2 Accepted in Finding 3 Accepted in Findings 3-4 COPIES FURNISHED: Angel Gonzalez Executive Director Board of Landscape Architecture Board 1940 N. Monroe Street Tallahassee, Florida 32399-0750 Jack McRay General Counsel 1940 North Monroe Tallahassee, Florida 32399-0792 Vytas J. Urba Assistant General Counsel Department of Professional Regulation 1940 North Monroe Tallahassee, Florida 32399-0792 Case No. 91-2120 (continued) Mr. Dale R. Smith 28225 Southwest 172d Avenue Homestead, Florida 33030
Conclusions On March 10, 2010, an Administrative Law Judge (“ALJ”) of the Division of Administrative Hearings entered an Order Closing File in the above captioned case.
Other Judicial Opinions OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, OFFICE OF THE GENERAL COUNSEL - CALDWELL BUILDING, 107 EAST MADISON STREET, MSC 110, TALLAHASSEE, FLORIDA 32399-4128, WITHIN 30 DAYS OF THE DAY THIS ORDER IS 2 Final Order No. DEO11-0006 FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. CERTIFICATE OF FILING AND SERVICE THEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Economic Opportunity, and that true and correct copies have been furnished to the persons listed below in the manner described, on this fopllriay of October 2011. : Miriam Snipes, Agency Clerk DEPARTMENT OF ECONOMIC OPPORTUNITY 107 East Madison Street, MSC 110 Tallahassee, Florida 32399-4128 By U.S. Mail: Alfred J. Malefatto, Esquire Greenberg Traurig, P.A. 777 South Flagler Drive, Suite 300E West Palm Beach, Florida 33401 R. Max Lohman, Esquire Corbett and White, P.A; 1111 Hypoluxo Road, Suite 207 Lantana, Florida 33462 Brian Joslyn, Esquire Gregory S. Kino, Esquire Boose, Casey, Cikin, Lubitz, Martens, McBane & O*Connell Northbridge Center, 19th Floor 515 North Flagler Drive West Palm Beach, Florida 33401-4626 By Hand Delivery: David L. Jordan, Assistant General Counsel Department of Economic Opportunity 107 East Madison Street, MSC 110 Tallahassee, Florida 32399-4128 By Filing with DOAH: The Honorable D. R. Alexander Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 Final Order No. DEO11-0006
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 Petitioners’ installation of ditch plugs on their property qualifies for an agricultural exemption from the requirement to obtain an environmental resource permit pursuant to section 373.406(2), Florida Statutes.
Findings Of Fact Petitioners, Paul and Kathleen Still (Petitioners), own a parcel of property comprised of 118 acres located within Section 33, Township 6 South, Range 21 East, in Bradford County, Florida, approximately six miles southwest of Starke, Florida (the Property). The Department is the state agency authorized under section 373.407, Florida Statutes, to make binding determinations at the request of a water management district or landowner as to whether an existing or proposed activity qualifies for an agricultural-related exemption from environmental resource permitting, pursuant to section 373.406(2). The Property is classified as agricultural by the Bradford County Property Appraiser. A county-maintained dirt road, Southwest 101st Avenue, forms the western boundary of the Property, and Lake Sampson forms the eastern boundary of the Property. Petitioners have owned the Property since 1996, and currently reside on the Property. A drainage ditch runs through the Property from Southwest 101st Avenue to Lake Sampson. The evidence suggests that it was originally constructed in the 1960s, was dug through wetlands and uplands, and serves to drain the area west of Southwest 101st Avenue. The ditch had the effect of draining some of the wetlands that had previously existed on the Property. The drainage ditch ends in the Northwest corner of the wetland above ditch plug 3, at which point water flows east and then north, eventually flowing into Lake Sampson north of the Property. The wetland above ditch plug 3 was a natural wetland which was likely part of Lake Sampson before Lake Sampson was partially drained in 1887. At some point, a low berm was pushed around parts of this wetland. Prior to Petitioners’ ownership, the berm was breached and the wetland drained. Ditch plug 3 was installed in this breach. Ditch plug 3 restored water to the same level as was present when the wetland was part of Lake Sampson. The Property contains stands of planted and naturally- regenerating pine, natural cypress, and a stand of cypress trees planted by Petitioners. Cypress is present on 43 acres of the Property, with more than 50 percent of that area having been planted. The density at which the cypress was planted will require that the stand be thinned. Most of the thinned cypress trees will be sent off to be turned into mulch. Some will be of a size that it can go into saw timber. Silviculture has been defined in several ways: The United States Department of Agriculture and the Department have, on their websites defined silviculture as “the art and science of controlling the establishment, growth, composition, health, and quality of forest and woodland vegetation to meet the diverse interests of landowners and a wide variety of objectives.” The United States Forest Service website defines silviculture as “the art and science of controlling the establishment, growth, composition, health and quality of forests and woodlands to meet the diverse needs and values of landowners and society on a sustainable basis.” Florida Administrative Code Rule 5I-2.003(29) defines silviculture as “a forestry operation dealing with the establishment, development, reproduction, and care of forest flora and fauna.” The Department’s Silviculture Best Management Practices, adopted in rule 5I-6.002, defines silviculture as “a process, following accepted forest management principles, whereby the trees constituting forests are tended, harvested and reproduced.” Production of cypress for lumber and mulch is a silvicultural and agricultural activity. Petitioners’ production of cypress for lumber and mulch constitutes a silvicultural operation. The production of cypress is enhanced by periodic inundation to control hardwood species of competing trees. Starting in 2004, Petitioners began to plan for the installation of ditch plugs on the Property, and shortly thereafter installed ditch plug 3, which is not in wetlands. That plug was short-lived, being removed prior to 2006 when Petitioners started getting groundwater infiltration into their shallow drinking water well. At some time in 2006 or 2007, Petitioners reinstalled ditch plug 3. In 2009, at the request of Petitioners, a preliminary field review was conducted by staff of the District to discuss the potential to install ditch plugs on the Property. Based on the preliminary investigation, it was determined that additional analysis would be needed to make sure that the proposed plugs would not have offsite and upstream drainage problems. Ditch plugs 1 and 2 were installed in stages beginning in 2011. Construction of the ditch plugs was done in stages to ensure that no offsite impacts would occur. There is no evidence in this case to suggest that the ditch plugs have resulted in any offsite and upstream drainage problems. Petitioners assert that the ditch plugs were installed to return water to wetlands that had been drained so as to enhance the production of cypress in those wetlands. Petitioners also admit that the ditch plugs will also have the effect of mitigating for sediment eroding from Southwest 101st Avenue. On November 5, 2014, the District notified Petitioners that it had come to the attention of the District that the ditch plugs may have been installed on the Property without proper authorization. At some time after November 5, 2014, Petitioners requested that the District provide notification of the applicability of one or more of the exemptions in section 373.406 to the installation of the ditch plugs on their Property. On April 24, 2015, the District requested additional information in support of Petitioners’ request, and advised Petitioners that the ditch plugs were not exempt under section 373.406(2) because the predominant purpose of the ditch plugs was to impede or divert the flow of surface water. The District further advised Petitioners that the ditch plugs may be eligible for exemption under section 373.406(9), which exempts measures having the primary purpose of environmental restoration or water quality improvement on agricultural lands where these measures have minimal or insignificant adverse impact on the water resources of the state. On June 4, 2015, as a result of the District’s April 24, 2015, letter, Petitioners requested a binding determination as to the applicability of the section 373.406(2) agricultural exemption. On June 18, 2015, the Department conducted a site visit. According to Mr. Lamborn, the county forester for Baker and Bradford counties, who wrote the Stewardship Forest Management Plan for the Property and has visited the Property several times, the Property is not a typical timber operation. Mr. Lamborn noted that Petitioners were the only landowners during his time as a county forester that identified soil and water conservation as their primary management goal for a forest stewardship plan. Mr. Vowell has never seen ditch plugs used in a silvicultural operation in the manner that Petitioners have used them on their Property. Mr. Bartnick testified that the Department has never issued an agricultural determination providing an exemption for ditch plugs in wetlands. In coming to its Binding Determination, the Department reviewed, among other information, correspondence between the District and the Petitioners; the Silvicultural Best Management Practices manual (2008); current and historical aerial photography of the Property; a USDA Soil Survey map; the 2015 Bradford County Property Appraiser Information Card; the National Wetland Inventory Map; and the Florida Forest Service Stewardship Management Plan. The review of the request for a Binding Determination substantially complied with the requirements of Florida Administrative Code Chapter 5M-15. On September 14, 2015, the Department applied the three-part test in rule 5M-15.005, and issued its Binding Determination which concluded that Petitioner’s activities did not meet the requirements for an agricultural exemption. Under the heading "Application of Statutory Criteria,” the Binding Determination provided that: Pursuant to Section 373.406(2) F.S., all of the following criteria must be met in order for the permitting exemption to apply. "Is the landowner engaged in the occupation of agriculture, silviculture, floriculture, or horticulture?" YES. FDACS-Florida Forest Service finds that Mr. Paul Still is engaged in the occupation of silviculture. "Are the alterations (or proposed alterations) to the topography of the land for purposes consistent with the normal and customary practice of such occupation in the area?" NO. FDACS-Florida Forest Service finds that the construction of the ditch plugs are not a normal and customary practice for silviculture being conducted in the area. Normal and customary silviculture would typically not include the plugging of existing ditches. In fact, silviculture in Florida often necessitates some level of drainage to make wetter sites more accessible and therefore more productive. Based on his experience, Mr. Lamborn explained that “conservation of soils and water resources”, as the main component of a Stewardship Plan is not customary. Moreover, the 2008 Silviculture Best Management Practices manual does not list ditch plugs installed in wetlands or in large ditches connected to wetlands, as a viable practice. The reference to ditch plugs in the 2008 Silviculture Best Management Practices manual is for “road-side” ditches and has to do with the entrapment and dispersion of sediment and the reduction of ditch- flow velocity, not hydrologic restoration. "Are the alterations (or proposed alterations) for the sole or predominant purpose of impeding or diverting the flow of surface waters or adversely impacting wetlands?" Because the exemption in section 373.406(2), F.S., requires an affirmative answer to all these criteria, and we have already found that the alterations are not consistent with normal and customary practice of such occupation in the area (see (b) above), there is no need to address this issue. In sum, the Binding Determination concluded the installation of ditch plugs in Petitioners’ particular circumstance did not qualify for the agricultural exemption under section 373.406(2), because such is not a normal and customary practice for silviculture being conducted in the area. Petitioners asserted that the Department’s determination reflected a “bias” towards pine production, and did not consider the requirements of cypress production. Much of the testimony regarding customary silvicultural practices was provided by Mr. Vowell. Mr. Vowell has worked with hundreds of small, private, non-industrial forest owners, and was clearly well-versed in pine production. He described his experience with the production of cypress as “very little.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Department of Agriculture and Consumer Services enter a final order finding that the activities on Petitioner’s Property addressed in this case are not exempt pursuant to section 373.406(2), Florida Statutes. DONE AND ENTERED this 2nd day of February, 2016, in Tallahassee, Leon County, Florida. S GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 2016. COPIES FURNISHED: Lauren Brothers, Esquire Department of Agriculture and Consumer Services Suite 520 407 South Calhoun Street Tallahassee, Florida 32399-0800 (eServed) Paul Still Kathleen Still 14167 Southwest 101st Avenue Starke, Florida 32091 (eServed) Lorena Holley, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 (eServed) Honorable Adam Putnam Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
