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 At all times pertinent to the allegations contained herein, Respondent was a licensed Professional land surveyor under registration number LS 0002125, with expiration data of January 31, 1989. Registration was granted by examination on July 14, 1967. The Board of Professional Land Surveyors, (Board), is the state agency charged with the regulation of professional land surveyors in Florida. On January 30, 1987, Respondent's firm, Mandish and Associates, Inc., performed a survey of Lot 62, Fairway Village, a subdivision located in Hillsborough County, Florida. As a result of the field, work performed by a crew employed by Respondent, which prepared field notes indicating the layout of the dwelling located on the property in question, and a second set of field notes which consisted of annotations to the original survey of the lot done by Bay Area Engineering Company, Inc., on August 5, 1977, Respondent prepared a survey drawing of the lot in question for the purpose of mortgage and flood certification on January 30, 1987. The document drawing reflects that the crew performing the survey was headed by an individual named Page. Evaluation of the drawing indicated several defects in the survey process and the matter was referred to Mr. Thomas E. Kaney, a licensed expert surveyor, who reviewed the survey done by Respondent's firm and completed his own field survey of the property. He found that on Respondent's drawing, a railroad spike called for to be on the drawing was not located and that the corner definition was off. He also found that the distances between the structure and the fence were incorrect. In his opinion, the finished drawing could not have been made from the field notes completed by the crew chief. The field notes appeared to be inadequate and did not conform to the survey as finally prepared. In his opinion, the survey drawing conforms to the minimum technical standards in the State of Florida as they pertain to form, but not to accuracy. Even though Respondent did not personally conduct the survey, he is responsible for the activities of the party chief and if Respondent were aware that the party chief had, made false or misleading notes in the past, he would be negligent if he failed to check the accuracy of these field notes accomplished by that individual. Here, the original party chief was Paul Page. Additional field notes were taken by Mr. Lucas, who did the boundary survey and who had some problems in doing so. Because of these problems, Page did a second survey at Respondent's request and upon his return to the office, indicated that everything was OK and he had picked up the information requested that was not available to Lucas. However, the field notes done by both Page and Lucas are not sufficient to give an accurate reflection of the front line of the lot in question. The original field notes fail to show angles, bearings, or distances, but show radial ties to the building. Minimal technical standards require that angles, bearings and distances be shown in the final drawing. In the opinion of Mr. Kaney, the final drawing, with the exception of the misplaced corner, does conform to minimum standards set forth in the Rule since the misplaced corner creates no real problem and the house is well within the property setback lines. Mr. Cole, who also evaluated the survey for the Board, is satisfied that the field notes show corners, but it is difficult to tell whether the angles, bearings, or distances shown are on the original notes or were put there subsequently. In his opinion, the field notes are not sufficient to determine the configuration of Lot 62 and for several reasons, the final survey drawing does not conform to minimum technical standards. First, the type of survey is not indicated. A reference for the bearings shown is not present. There is no comparison on the final drawing with the plat bearings. Second, no distance to the nearest street intersection is identified. The Department's standards allow a showing of a distance to another point of reference when showing the distance to the nearest street is not practical. In the instant case, the Respondent showed the distance to another point of reference even though the lot in question is only two lots removed from the nearest intersection. While Respondent contends this is a reasonable application of the rule, the witness contends it is not. In light of the fact that this is a suburban subdivision and not acreage, and street references are practical, it is found that this is a discrepancy and deviation from minimum standards. Finally, Mr. Cole indicates that the discrepancies between bearings and measurements found on the original plat and those on Respondent's drawings are not shown. The precision shown on the map is too high to be reasonable and this leads to the conclusion that remeasurement was not accomplished in this regard, it should be noted that Mr. Cole's review was based only on a review of the documentation and not on his own survey of the property. The property is described as "suburban" where the error permissibility ratio is one part in 7,500. On a 100 foot line, this would equate to approximately one inch. If the Respondents errors were to fall within the authorized tolerance, it would be appropriate to show the actual measurement as opposed to the original measurement. This is, however, a matter of judgement. The exceptions described by Cole are relatively minor in nature. However, taken as a whole, the Respondent's survey contains errors which, while not the most serious, render the survey less than compatible with minimum technical standards within the community.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Respondent, William H. Mandish, be reprimanded and ordered to pay an administrative fine of $250.00. RECOMMENDED this 7th day of February, 1989 at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of February, 1989. COPIES FURNISHED: Elizabeth Alsobrook Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750 William H. Mandish 262 South May Avenue Brooksville, FL 33512 Allen R. Smith, Jr. Executive Director Board of Professional Land Surveyors Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750 Bruce D. Lamb General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750
The Issue Whether Petitioner's challenge regarding the June 1997 landscape architecture licensure examination should be sustained.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: In June of 1994, Petitioner took the national landscape architecture licensure examination (LARE). LARE is an examination developed, administered and graded by the Council of Landscape Architectural Registration Boards (CLARB). The 1994 version of LARE, like all subsequent pre-1997 versions of the examination, contained seven parts: Legal and Administrative Aspects of Practice (part 1), Programming and Environmental Analysis (part 2), Conceptualization and Communication (part 3), Design Synthesis (part 4), Integration of Technical and Design Requirements (part 5), Grading and Drainage (part 6) and Implementation of Design Through the Construction Process (part 7). Three of the seven parts of the examination, parts 1, 2 and 7, consisted of multiple choice questions. Parts 2 and 7 had 90 and 120 questions, respectively. The passing score for each part of the examination was 75. On the June 1994 examination, Petitioner received a passing grade of 75 on part 2 and failing grade of 69 on part 7. In June of 1995, Petitioner retook part 7 of the examination (as well as four other parts of the examination she had failed in 1994). Petitioner received a failing grade of 71 on part 7 of the June 1995 examination. After receiving her scores on the June 1995 examination, Petitioner sent a letter, dated October 10, 1995, to the Department of Business and Professional Regulation (Department), which read as follows: Pursuant to Section 120.57(1), Florida Statutes, I would like to petition for a formal hearing before the Division of Administrative Hearings. I am disputing my scores achieved on the Landscape Architecture Registration Examination (LARE) for sections 3, 4, 5 6 and The reason I am disputing the score on these sections is because I was comfortable with the examination format, paid specific attention to detail and felt confident that I had successfully designed appropriate buildable solutions to the problems meeting or exceeding minimum competency. The procedures for requesting a formal hearing were written with what appear to be contradictions and therefore I am enclosing a copy that was mailed to me. Since the information pamphlet specifically states that NO CHALLENGES TO SECTIONS 1 THRU 7 OF THE EXAMINATION WILL BE ACCEPTED, it is not clear then why it states that a candidate electing to review the examination for the purpose of submitting challenges is then stated. I did call the Department of [Business and Professional] Regulation and spoke with JoAnn Richardson at the Bureau of Testing for clarification. In my first conversation with her, she stated that I would be able to request a pre-hearing review in order to accurately challenge my scores. In a second conversation with her on that same day, she then said that it would be O.K. to go to the review and then submit this letter of petition for a formal hearing. Since the dates in this pamphlet do not accurately reflect our conversation, I asked her if she could write it in a letter for me so that I was confident that I would not miss the deadline to file for this petition. I have not received this letter from her and therefore am petitioning for a formal hearing at this time with a request for a pre-hearing review of my examination. Petitioner received a letter from the Department, dated October 27, 1995, acknowledging receipt of her October 10, 1995, letter and advising her that her letter had been "forwarded to the Office of the General Counsel for review and action." No action, however, was subsequently taken on the matter. Petitioner telephoned the Department on several occasions to ascertain the status of her hearing request. She was told that she would be notified when a hearing was scheduled. Such notification, however, never came. Petitioner therefore applied to retake, in June of 1996, those parts of the LARE she had not yet passed, including part 7. The Pre-Exam Orientation Information booklet that CLARB sent to candidates before the June 1996 examination alerted candidates to the following: 1996 will be the last time to take Sections 2 and 7 of the LARE separately. In 1997, Sections 2 and 7 of the current test will be combined into a new Section 2(7)- Analytical and Technical Aspects of Practice. If a candidate does not pass both Sections 2 and 7 separately in 1996 he/she will be required to complete the new Section 2(7). Petitioner received a failing grade of 74 on part 7 of the June 1996 examination. She did not take any steps to challenge this failing grade. The revisions announced in the 1996 Pre-Exam Orientation Information booklet were made to the 1997 version of the LARE. Parts 2 and 7 of the examination were replaced by a new part 2(7), entitled "Analytical and Technical Aspects of Practice," which consisted of 130 multiple choice questions. This new part of the examination tested the same general knowledge, skills and abilities as had parts 2 and 7 of the previous examinations, but did so in a more efficient manner. In June of 1997, Petitioner took part 2(7) of the examination and received a failing grade. The failing score that Petitioner received on part 2(7) of the June 1997 examination, and the failing scores that she received on part 7 of the 1994, 1995, and 1996 examinations, are reliable indicators of her competency in the areas tested at the time she took the examinations. These failing scores reflect her failure to meet minimum competency in the areas tested, as determined by the panel of experts who set the passing scores for these examinations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order finding that Petitioner is not qualified for licensure as a landscape architect because she has not yet passed the licensure examination, as required by Section 481.311(2)(a), Florida Statutes. DONE AND ENTERED this 11th day of September, 1998, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 1998.
Findings Of Fact Petitioner, David A. Mancino, was a candidate on the 1982 Architecture Design and Site Planning Examination administered on June 14 through 16, 1982, by Respondent, Department of Professional Regulation, Board of Architecture. He is a 1979 graduate of the University of Texas and is presently employed by an architectural firm in Fort Lauderdale, Florida. On September 10, 1982, Petitioner was advised by Respondent that he had received a failing grade on Part A of the examination. After reviewing his examination with the Executive Director of the Board in December, 1982, Petitioner requested a formal hearing to contest his failing grade. That request prompted the instant proceeding. The professional architectural examination consists of two parts, Part A and Part B. The former part is known as the Site Planning and Design portion of the examination and 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 three examiners designated and approved by the Department. Each examiner judges the individual applicant's entire work product pursuant to prescribed evaluation criteria set forth in Rule 21B-14.03(1), Florida Administrative Code. Grades are awarded by each examiner ranging from 1 through 4 depending on the quality of the work. An applicant must have a minimal average of 3 in order to pass this part 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. Petitioner's solution has been received as Hearing Officer Exhibit 1. Petitioner received scores of 2, 2 and 2 on Part A of the examination. Generally, his solution was found to be weak in the following broad areas: (a) site planning and site location, (b) building planning and design, and (c) technical aspects. Specifically, the solution was weak as to the following aspects of site planning and site design: handicapped parking location/access from parking area across traffic lanes, service area location and traffic circulation, service drive curb cut, and site aesthetics, including trees, walls and pedestrian crosswalks. In building planning and design Petitioner's solution was less than acceptable in appropriate positioning and indication of ancillary elements, logical pedestrian circulation in relation to services, vertical circulation, conformance to program area requirements, conformance to life safety requirements, and building aesthetics in response to surrounding area, activities and owner goals. Finally, the technical aspects of the solution were weak in terms of the use of appropriate materials and construction methods, and vertical loads (roofs, columns and walls) All such deficiencies were confirmed by the Department's expert witness who reviewed and analyzed the examination, and who would have assigned a grade of 2 to the examination had he been an examiner. Petitioner generally disagreed with the noted weaknesses, and contended his solutions were satisfactory. He also questioned whether the problem was "fair", since the typical architect would probably never be called upon to design an airport terminal building during his or her career. Other than his own testimony, he offered no other evidence to contradict the examiners' conclusions.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the petition of David A. Mancino be DENIED. DONE and RECOMMENDED this 7th day of March, 1983, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of March, 1983. COPIES FURNISHED: Mr. David A. Mancino 2791 Northeast 57th Street Fort Lauderdale, Florida 33308 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Christopher T. Mancino, Esquire Suite 2200 One Financial Plaza Fort Lauderdale, Florida 33394 John J. Rimes, III, Esquire Department of Legal Affairs Room 1601 - The Capitol Tallahassee, Florida 32301
The Issue Whether or not Respondent has violated Sections 472.033(1)(a), and (h), and 455.227(1)(b), Florida Statutes, and Rules 21HH-2.001(3) and 21HH-6.003, Florida Administrative Code, by failure to comply with a valid Final Order of the Board of Professional Land Surveyors.
Findings Of Fact Petitioner is the state agency charged, in conjunction with the Board of Professional Land Surveyors, with the responsibility to prosecute administrative complaints pursuant to Chapters 455 and 472, Florida Statutes, and the rules promulgated pursuant thereto. At all times material to the Amended Administrative Complaint, Respondent Bertin C. Tash was licensed as a professional land surveyor in the State of Florida, holding license number LS 0002292. By Final Order entered December 31, 1985, the Board of Professional Land Surveyors issued a Final Order in case number 0049353 (previously DOAH Case No. 85-0285), a prior disciplinary action against Respondent. Among other terms of that Final Order, Respondent was placed on probation for twenty-seven months and further was required during the course of that twenty-seven month probation to: ... submit 25 surveys representative of his land surveying practice which shall be accompanied by field notes and record plats to the board for its review. Additional information regarding the surveys may be requested. Five surveys shall be submitted within three months from the filing of this final order; thereafter, five surveys shall be submitted at six month intervals during the period of probation. Respondent shall attend the first available continuing education seminar in his area on the minimum technical standards within 12 months from the filing of this order or as soon after as possible. Evidence of Respondent's attendance and successful completion of the course shall be furnished to the board through the proctor or instructor of the continuing education course... (Emphasis supplied.) It is noted that although the "certificate of service" for the copy of the Final Order admitted in evidence as part of Petitioner's Exhibit 3 is unsigned, Respondent admitted receipt thereof, that no appeal was taken therefrom, and that he understood the terms of the Final Order. Twenty-seven months from December 31, 1985 would fall on April 1, 1987. Twelve months from December 31, 1985 would fall on January 2, 1986. Respondent initially complied with the Final Order by submitting two sets of five surveys, the second in December, 1986. However, some type of dispute arose between Respondent and the Board's monitor of Respondent's probation about whether the monitor could require corrections to be done by Respondent to those surveys already submitted and about whether or not Respondent could be required to submit his field notes for the surveys. Respondent seems to have resisted the clear language of the Final Order (see emphasized language in Finding of Fact No. 4, supra) upon a personal belief that these requirements were unconstitutional, invaded his privacy, or exposed him to ethical charges by his clients. There is nothing in the record, to support this ideation of Respondent, and eventually, Respondent altered his position. Respondent did not submit any further surveys until November, 1988 after the instant case was already in progress, at which time he had modified some of his views with regard to field notes. He then attempted to comply with the Final Order by submitting corrected surveys. However, in error, he sent these surveys not to the Board, but to the attorney for the Department of Professional Regulation where they were retained. This submittal was considerably beyond the April 1, 1987 probationary period and whether considered corrections of the second five surveys or an additional five surveys would not constitute the twenty-five surveys required by the prior Final Order. The Respondent failed to complete a seminar on minimum technical standards between the entry of the Final Order on December 31, 1985 and the date of formal hearing on December 14, 1988. Petitioner submitted proof that such courses were available in West Palm Beach, Respondent's hometown, on May 20, 1987, and in adjoining Broward County on May 21, 1988. Clearly, neither of these courses was available to Respondent during the probationary time frames set out in the Final Order and Findings of Fact Nos. 4 and 5 supra. Petitioner submitted no proof of the availability of other such courses during the appropriate time frames, but it appears undisputed that these were the only qualifying courses "in his area" and that the Board would have accepted Respondent's late completion of either course as his compliance with the continuing education requirement in the Final Order. The Board even went so far as to reserve space for Respondent at the May 21, 1988 course in Broward County. Respondent's testimony that he was too ill to attend the May 30, 1987 course is unrefuted. Respondent's testimony that he had, no private means of transportation to the May 21, 1988 course is also unrefuted but he did not show unavailability of public transportation. Moreover, Respondent testified that until the date of formal hearing, he had resisted, upon grounds of his personal ethical ideation, the concept of learning from, or submitting himself to critiques by, any local professionals who conducted continuing education seminars in land surveying.
Recommendation That the Board of Professional Land Surveyors enter a Final Order finding Respondent guilty of two counts of violating Section 472.003(1)(h) Florida Statutes, and imposing a three-month suspension of Respondent's license, subject to an extension of such suspension to a maximum of one year or until Respondent completes the continuing education course required by the prior Final Order, whichever comes first, and imposing thereafter three years' probation to follow immediately upon the lifting of the suspension, during which three years' probation Respondent shall be required to submit an appropriate number of surveys to be determined by the Board for review by the Board. DONE and ENTERED this 13th day of February, 1989, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3108 The following constitute specific rulings upon the parties' respective Proposed Findings of Fact (PFOF) pursuant to Section 120.59(2), Florida Statutes. Petitioner's PFOF: 1-5 are all accepted. Respondent's PFOF: PFOF 1 discusses the nature of several exhibits and objections ruled upon in the course of formal hearing, does not constitute a relevant or material proposed fact and is not dispositive of any issue at bar. The same subjects are addressed within the RO at FOF 3-4 and 8 to the degree they impinge on this proceeding. PFOF 2 is rejected in part and accepted in part in FOF 8 to the degree it comports with the greater weight of the credible record evidence as a whole. PFOF 3 is accepted in part in FOF 6. The remainder of the proposal is rejected as irrelevant, immaterial, and not comporting with the greater weight of the credible record evidence as a whole. PFOF 4,5,7 and 8 are rejected as mere argument of position or legal argument. PFOF 6 is accepted in part in FOF 7. The remainder of the proposal is rejected as immaterial or mere argument of position or legal argument. COPIES FURNISHED: George W. Harrell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Bertin C. Tash 5100 Spruce Avenue West Palm Beach, Florida 33407-2846 Allen Smith, Jr. Executive Director Board of Professional Land Surveyors 130 North Monroe Street Tallahassee, Florida 32399-0750 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32299-0750 =================================================================
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In June 1990, petitioner was a candidate on section 4 of the landscape architect examination, having previously passed the other five sections on the examination. The test was administered by the Department of Professional Regulation (DPR) on behalf of respondent, Board of Landscape Architecture (Board). On October 8, 1990, DPR issued a written uniform grade notice advising petitioner that he had received a grade of 65.7 on the examination. A grade of 75 is necessary to pass this section of the examination. The Board has adopted a rule authorizing an unsuccessful candidate to attend a post-examination review session in Tallahassee for the purpose of challenging his grade. Under this procedure, a candidate may request another grader to regrade the challenged portions of the examination. In this case, petitioner opted to use this procedure and challenged various problems in section 4. Two other graders regraded the examination and, while raising some scores, the graders also lowered others, which resulted in an overall scale score of 73. By letter dated March 31, 1991, petitioner requested a formal hearing to contest his grade. In his letter, Delate generally contended he was entitled to a passing grade because his examination solutions were graded in a "careless and inconsistent nature", the instructions given at the examination were "very confusing and interruptive", the regrading of his examination was improper because it resulted the in lowering of the original scores on some problems, three multiple choice questions were arbitrarily thrown out after the examination was given, the passing grade was arbitrarily raised by the Board from 74.5 to 75, and he did not receive appropriate credit on ten problems. The June 1990 examination was a uniform national examination used in approximately thirty-eight states, including Florida. With the exception of one section, all sections on the examination were prepared by the Council of Landscape Architectural Registration Boards (CLARB), a national organization of which the Florida board is a member. The examination is blind graded by volunteer licensed landscape architects who receive training from and are "standardized" by master graders prior to the test. On this examination, the solutions by all candidates from the southeastern region of the United States, including Florida, were placed in one group and graded by the same persons. The graders used an evaluation guide prepared by CLARB which contained guidelines and criteria for assigning scores. Since two parts of section 4 are graded subjectively, it is not unusual for two graders to reach a different conclusion with respect to a particular problem. There is no evidence that the first or second graders who reviewed Delate's examination were arbitrary, inconsistent or careless as he has alleged. Section 4 of the examination involves the subject matter of design implementation and consists of parts 4a and 4b. Part 4a had four factors (problems) while part 4b had seven factors. Each factor is assigned points which may range from zero for no credit to as high as eight, depending on the number of items in the factor. In this case petitioner has challenged the score he received on all four factors in part 4a and factors one through six in part 4b. In order to maintain the confidentiality of the specific problems on this examination, it is suffice to say that the candidate on section 4 was required to prepare a large drawing for each part, one being a "layout and dimensioning" drawing, that is, he was required to lay out fixed and proposed elements (e.g., sidewalks, drains, paving detail) and to locate their dimensions, and the other being a "detail and specification" drawing which required the candidate to draw the details and specifications for such things as walls, pavement, decking and the like. Petitioner's drawings have been received in evidence as respondent's exhibits 4 and 5. Each party presented evidence regarding the appropriate grade that should have been assigned to the problems in dispute. Petitioner testified on his own behalf and presented the testimony of another candidate on the same examination and an engineering technician. Although the undersigned allowed the witnesses to express opinions regarding the examination, none were qualified or accepted as experts, and none were familiar with the specific grading criteria for this examination. The Board presented the testimony of a long-time licensed landscape architect, C. Michael Oliver, who is a master grader for CLARB and has been grading the national examination for a number of years. As a master grader, Oliver trains other graders on the national examination. Petitioner's contention that Oliver's testimony is irrelevant has been rejected. 1/ Oliver regraded parts 4a and 4b on petitioner's examination and concluded that Delate was not entitled to a passing grade. He reached this conclusion as to part 4a because the candidate had missing or incorrect dimensions, inaccurately located elements, and poorly communicated plan layout. The expert also reached the same conclusion with respect to part 4b because the candidate had a lack of dimension, missing elements, an unsound structure, and poor communicative skills. This testimony is found to be more credible and persuasive than that offered by petitioner and is hereby accepted. Therefore, it is found that petitioner was not entitled to have his grade raised on parts 4a and 4b. Petitioner also contended that he would have received a passing grade if the Board had not thrown out three multiple choice questions after the examination was given. However, the evidence shows that if the questions had been used, the passing grade (based upon the difficulty of the examination) would have been raised and petitioner would still not achieve a scale score of 75. Petitioner next contended that the Board acted improperly during the regrading process because the second graders lowered the scores from the original grade on some of the challenged questions. In other words, the second graders not only raised certain scores, but they also lowered others resulting in a revised grade of 73, still short of the required 75. Delate complained this was unfair and that no prior notice was given to him regarding this procedure. However, it was established that this process, which is not codified by rule, is an accepted testing procedure, is used on all professional examinations administered by DPR, and never results in the revised score being reduced below the original overall score. Therefore, the agency's policy is found to be justified and adequately explicated. Delate also contended that the review session graders were given unlimited time to grade the examination in contrast to the original graders who had a compressed time schedule and numerous examinations to review. Even so, this can hardly be deemed to be arbitrary or unfair since the second graders raised petitioner's grade by some seven points. Petitioner's next contentions concerned "confusing and interruptive" instructions allegedly given at both the examination and regrading session and an allegation that the Board acted arbitrarily by changing (on an undisclosed date) the required grade for passing from 74.5 to 75. However, there was no evidence to support the allegation that these matters prejudiced petitioner, and in any event, all original and review session candidates would have been subject to the same interruptions, time constraints and passing grade requirements. Further, if the change in the passing grade (from 74.5 to 75) occurred after the examination was given, petitioner's grade (73) was still too low to be affected by that change. Finally, petitioner cited the fact that he will lose his job as a landscape architect with Collier County if he does not receive a passing grade. While this factor obviously has profound economic and personal ramifications for petitioner, it is not a consideration in the grading process.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board enter a final order confirming petitioner's grade of 73 on section 4 of the June 1990 examination. DONE and ENTERED this 20th day of September, 1991, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th 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
The Issue The issue is whether AHG Hotels, LLC's application for a Type B site plan and deviation should be approved.
Findings Of Fact Based upon all of the evidence, including the stipulation of counsel, the following findings of fact are determined: Background On September 11, 2002, the Development Review Committee (DRC) of Respondent, City of Tallahassee (City), approved a Type B site review application authorizing the construction of a Hampton Inn & Suites by Respondent, AHG Hotels, LLC (AHG). The DRC also granted AHG's request for a deviation from development standards contained in Section 10.6RR of the City's Zoning Code by allowing AHG to exceed the four-story height limitation and to add a fifth floor to the structure. Two other deviation requests by AHG were determined to be either inapplicable or exempt from Zoning Code requirements because of vesting, and thus they are not at issue here. On October 10, 2002, Petitioner, Capital City Hotels, Inc. (Petitioner), which owns and operates a Hilton Garden Inn near the proposed construction, timely filed a Petition for Formal Proceedings to contest the approval of the deviation request. On October 15, 2002, a determination of standing as to Petitioner was issued by the Tallahassee-Leon County Planning Commission (Commission), which will issue a final order in this matter. As stipulated by the parties at hearing, the only issue is whether AHG failed to satisfy three of the seven criteria that must be met in order for the DRC to grant a deviation. Those disputed criteria are found in paragraphs (iii)-(v) of Section 23.3 of the City's Code of Ordinances (Code) and provide as follows: The deviation requested is the minimum deviation that will make possible the reasonable use of the land, building, or structure; and The strict application of the requirements of this chapter will constitute a substantial hardship to the applicant, which hardship is not self- created or imposed; and There are exceptional topographic, soil, or other environmental conditions unique to the property; The parties agree that all other criteria for the site plan and deviation have been satisfied by AHG. In addition, a related request by AHG for a technical amendment to the boundaries of the parcel will be granted by the DRC, assuming that AHG obtains a favorable ruling in this case. History of the Property The property which is the subject of this case is identified as lot of record 454 and fronts on the west side of Lonnbladh Road, lies south of Raymond Diehl Road and several hundred feet east of Thomasville Road, and is just southeast of the major intersection of Interstate 10 and Thomasville Road in Tallahassee. The zoning for the property is Commercial Parkway (CP), a mixed-use zoning district which applies to areas exhibiting an existing development pattern of office, general commercial, community facilities, and intensive automotive commercial development abutting urban area arterial roadways with high traffic volumes. Among the numerous permitted uses in that land use category are hotels and motels. The property is part of a 7.1-acre site originally owned by Kingswood Land Partners, Ltd. (Kingswood). In January 1990, Kingswood obtained from the City a minor subdivision approval, dividing the 7.1 acres into three lots of record, including lot of record 454. The three lots consisted of a 2.44-acre lot running along most of the western portion of the property with the exception of a small area on the southern end, a 1.68-acre lot on the northeast portion of the property, and a 2.98-acre lot on the southeast portion of the property (lot of record 454). In November 1990, Kingswood received from the City a verification of vested status (vested rights certificate) for the 7.1-acre site. The vested rights certificate provided that the 7.1-acre site was exempt from the consistency and concurrency provisions of the Tallahassee-Leon County Comprehensive Plan (Plan) and was vested for an 89,887 gross square foot commercial non-medical office building and a 135- unit hotel/motel. In 1991, Kingswood utilized the vesting for a 135- unit, five-story hotel and constructed what is now known as the Cabot Lodge on the 2.44-acre lot. It also constructed on part of the southeastern 2.98-acre lot a paved area with parking places. In 1992, Kingswood conveyed to Twin Action Hotels, Inc. (Twin Action) the 2.44-acre lot which included the Cabot Lodge Hotel, but not the paved parking area on the 2.98-acre lot. The same year, Kingswood also conveyed to New Horizons Unlimited, Ltd. (New Horizons) the remaining two lots, which two lots were vested for a commercial non-medical office six- story building of 89,887 gross square feet. At the time of the conveyances of the New Horizons property and the Cabot Lodge property to New Horizons and Twin Action, respectively, these parties entered into a Grants of Reciprocal Easements dated June 23, 1992, recorded in Official Records Book 1570, at page 1072 of the Public Records of Leon County, Florida. Around 1994, the Florida Department of Transportation acquired .333 acres of the northernmost lot owned by New Horizons for a project which included realigning and four-laning Raymond Diehl Road and relocating the eastbound entrance ramp to Interstate 10, immediately in front of the Cabot Lodge lot. This acquisition reduced the New Horizons 1.68-acre lot to 1.347 acres. On October 14, 1998, the City approved a vested rights transfer request submitted by New Horizons, which provided that the New Horizons property could be used for a 107-room, four-story business hotel and 59,162 gross square feet of commercial non-medical offices, instead of the vested 89,887 gross square feet of commercial non-medical offices. Since the acquisition by New Horizons of the two remaining lots, that property has remained vacant and unimproved with the exception of the westernmost portion immediately south of the Cabot Lodge building, on which is located pavement and parking spaces. The parking spaces are not legally available to Cabot Lodge for use. The property located immediately west of the Cabot Lodge 2.44-acre lot is property which is referred to as the Thomasville Road Executive Park (Executive Park) property. On an undisclosed date, this property was divided into three separate lots by a minor subdivision approval consisting of Parcel A on which was constructed the Unisys Building and parking spaces, Parcel B which is now improved with a Hilton Garden Inn owed by Petitioner, and Parcel C which remains undeveloped. In 1996, Petitioner filed its site plan application to develop Parcel B. Included in the site plan application was a request for a technical amendment to adjust the boundary lines between Parcels A and B of the Executive Park property. Like AHG has done here, Petitioner also requested a deviation to the then height limitation of 45 feet, requesting that the City allow it to build the building 50 feet high, rather than the required 45 feet. Although the property on which the Hilton Garden Inn is now located was vested for a three-story commercial office building, subject to CP zoning, the City agreed that the vesting could also be used for a hotel use consisting of four stories rather than three stories. The City granted Petitioner's request to allow it to build a four-story hotel on Parcel B. It also granted Petitioner a height deviation so that the midpoint or peak of the roof would be not higher than 50 feet. However, the top of the roof is 59 feet, 6 inches. The facility has 99 rooms. No objection was made by Cabot Lodge, Unisys, or New Horizons to Petitioner's application for approval of its site plan, the technical amendment adjustment to boundary parcels, the use of the property for a four-story hotel instead of a three-story office building, or the granting of a height deviation. In April 2002, AHG entered into a contract with New Horizons for the purchase of 2.23 acres of the southeastern property owned by New Horizons for approximately $1.5 million. The 2.23 acres is part of the 2.98-acre lot of record known as lot 454. The application On July 5, 2002, AHG filed with the DRC its site plan application to construct a 122-room, five-story hotel on the 2.98-acre lot. On the same day, it filed a Deviation from Development Standard Request asking that it be allowed to construct a five-story hotel on the parcel rather than being limited to a four-story hotel, as required by the development standards for the CP zoning district in which the property is located. New Horizons has also requested a technical amendment to the boundaries of the 1.68-acre lot and the 2.98- acre lot that would result in the 2.98-acre lot on which the hotel will be built being reduced to 2.23 acres. The DRC intends to approve that request, assuming that AHG prevails in this proceeding. AHG's site plan uses the largest footprint for construction of the hotel building that is allowed under current applicable Code restrictions relating to the amount of impervious surface allowed to be constructed on a 2.23-acre lot, as well as the required amount of green space which must be maintained. If current zoning rules and regulations are strictly applied, AHG would be unable to have more than approximately 107 rooms in the hotel, utilizing the maximum footprint and only four stories on the 2.23 acres. The only way to accommodate the construction of 122 rooms is to obtain a deviation from the current restriction of four floors and allow a fifth floor to be built. The proposed height of construction of the five- story hotel will be 53 feet, 10 inches, except for several small areas of parapet walls which will be no higher than 58 feet, 4 inches. The subject site is relatively flat, with no excessive slopes, and it has no remarkable features from an environmental standpoint. It is unique in the sense that it is flat, barren land. It does not have wetlands, pristine water bodies, or other protected conditions. Also, it has no endangered plant species requiring special protection, no patriarch trees, no protected trees, and no native forests. Should the Deviation be Approved? A deviation under Section 23.3 is an amendment to a "set requirement" in the Code, such as a setback or height restriction. Between 60 and 75 percent of all applications filed with the DRC for a site plan approval are accompanied by a request for a deviation from a development standard, which are standards prescribed for each zoning district in the Code. One such development standard for the CP District is a four- story height limitation on structures found in Section 10.6RR of the Zoning Code. The DRC is a four-person committee comprised of representatives from the City's Utility Department, Public Works Department, Growth Management Department, and Planning Department; it is charged with the responsibility of deciding whether to grant or deny a deviation request. For at least the last six years, and probably much longer, the DRC has consistently applied and interpreted the deviation standards in Section 23.3 in the same manner. Although Section 23.3 provides that "the granting of deviations from the development standards in this chapter is not favored," they are not discouraged since more than half of all applicants cannot meet development standards due to site characteristics or other factors. Rather, the intent of the provision is to prevent wholesale deviations being submitted, project after project. Requests for a deviation are always approved, when justified, in order to give both the City and the applicant more flexibility in the development process. Here, AHG's application was treated the same as any other applicant. This case represents the first occasion that an approval of a deviation has been appealed. After an application for a deviation is filed, it is forwarded to all appropriate City departments as well as members of the DRC. Each reviewing agency is requested to provide information to the DRC members on whether or not the request should be recommended for approval. In this case, no adverse comments or recommendations were made by any City Department. After reviewing the Department comments, and the justification submitted by AHG, the DRC approved the deviation. Under Section 5.1 of the Code, the City's land use administrator, Mr. Pitts, has the specific responsibility to interpret all zoning and development approval regulations, including Section 23.3, which provides the criteria for granting a deviation. That provision has an apparent inconsistency between the first two sentences: the first sentence includes a phrase that all criteria set forth thereafter must be met to approve a deviation while the second sentence appears to provide that only the conditions necessary to granting a particular deviation must be met. In resolving this apparent inconsistency, Mr. Pitts does not construe the Section as requiring that all seven criteria must be met in every case. Instead, even though all criteria are reviewed by the DRC, only those that are applicable must be satisfied. If this were not true, the DRC "would grant very few deviations as part of [its] site plan or subdivision regulation [process]," and the intent of the Section would be undermined. For example, in order to justify a deviation, the DRC does not require that an applicant show that there are exceptional topographical soil features if, as here, there are no exceptional environmental features on the property. This interpretation has been consistently followed over the years, is a reasonable and logical construction of the language, and is hereby accepted. As a part of its application, AHG submitted a narrative justifying the granting of a deviation under each of the seven criteria. To satisfy the first disputed criterion, AHG indicated in its application that "[t]his deviation is the minimum allowed to make reasonable use of the property and to compete with adjacent hotels who enjoy the same height opportunity." AHG's use of the property is consistent with adjoining developments, including the neighboring Cabot Lodge, which is five stories high and has 135 rooms, and the Hilton Garden Inn, which was originally vested for an office building, but was allowed by the DRC to construct a four-story hotel. There is no other property available to AHG at this site on which to construct a hotel. The evidence shows that New Horizons initially offered to sell AHG only 2.05 acres; when AHG advised that anything less than 2.23 acres would render the project financially unfeasible, New Horizons "very reluctantly" agreed to sell an additional .18 acres. Because New Horizons intends to build a restaurant on its remaining 2.097 acres, any further reduction in the acreage would reduce its highest and best use of the property. Thus, AHG does not have the option of purchasing more property to expand its hotel laterally, as Petitioner suggests, rather than by adding a fifth floor. In addition, AHG does not have the ability to reduce the size of its hotel rooms in order to squeeze more rooms out of a four-story structure. This is because Hampton Inn (the franchisor) will not grant a franchise for a new hotel unless the franchisee agrees to build a hotel with prototypical room sizes. The present design of the hotel meets the minimum size required. There is no evidence that there is any other minimum deviation that could be granted which would make possible the use of the property for construction of 122 rooms under the standards set forth by Hampton Inn, the franchisor. Thus, the only practical adjustment that can be made is to obtain a height deviation. Accordingly, the criterion has been satisfied. To satisfy the second disputed criterion, AHG stated in its narrative that "[t]he strict application of this requirement would place this property and proposed hotel at a competitive disadvantage by a lower number of available rooms." Through testimony of an AHG principal, it was established that in order for AHG to make reasonable use of its property, the addition of a fifth floor is necessary. The evidence shows that as a general rule, a developer can only afford to pay approximately $10,000.00 per room for land cost. In this case, based on the 2.23 acres, at a purchase price of $1,500,000.00 and a hotel with 122 rooms, the projected land cost is $12,000.00 per room. This is the maximum that can be paid for land and still make AHG's project economically feasible. The strict application of the Zoning Code will make the project financially unfeasible, which will create a substantial hardship to AHG. The hardship is not self-created or imposed. At hearing, Petitioner's representative contended that "there are some companies who would find it financially feasible" to construct a four-story hotel with fewer rooms on the same site. However, the more persuasive evidence on this issue was presented by the AHG principal and shows the contrary to be true. The evidence further shows that the granting of the deviation will result in an almost equal efficiency factor of the total square footage of building versus the total square footage of the site when comparing AHG's proposed project to the neighboring Cabot Lodge. On the other hand, strict application of the Zoning Code could result in a substantially less and disproportionate efficiency factor of AHG's property as compared to the adjoining Cabot Lodge. This is because the highest point of the proposed Hampton Inn and Suites is 58 feet, 6 inches, with the majority of the hotel being 51 feet high. The adjoining five-story, 135-room Cabot Lodge has its highest point at 55 feet, 6 inches, with the majority of the building at 46 feet high. The Hilton Garden Inn has the highest roof with its maximum height at 59 feet, 6 inches, which runs across the entire peak of the roofline. 40. To satisfy the final disputed criterion, AHG indicated in its application that "[t]he absence of any environmental features on this property, or any adjacent environmental features that might be impacted[,] help support the deviation." As noted above, the property in question is unique in the sense that it is flat, treeless, and has no remarkable environmental features. If a site is devoid of environmental features, as it is here, the DRC has consistently interpreted this provision as having no application in the deviation process. This is the same interpretation used by the DRC when it approved Petitioner's application for a height deviation in 1996 to construct the Hilton Garden Inn. Like AHG's property, Petitioner's property was also devoid of environmental features. Therefore, this criterion does not apply. Even assuming arguendo that this provision applies, the addition of a fifth story to a four-story building has no impact whatsoever on the environmental characteristics of the site. Finally, there is no evidence that the deviation request is inconsistent with the Plan, or that the deviation will have any adverse impact to the general health, safety, and welfare of the public. Indeed, as to any Plan implications that might arise through the construction of a hotel, the evidence shows that the project is wholly consistent with the purpose and intent of the CP land use category, which is to promote higher intensity and density in CP-zoned land and to discourage urban sprawl.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Tallahassee-Leon County Planning Commission enter a final order granting AHG's Type B site plan review application and its application for a deviation from the height restriction for the CP land use category. DONE AND ENTERED this 22nd day of January, 2003, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 2003. COPIES FURNISHED: Charles R. Gardner, Esquire Gardner, Wadsworth, Shelfer, Duggar & Bist, P.A. 1300 Thomaswood Drive Tallahassee, Florida 32308-7914 Linda R. Hurst, Esquire City Hall, Second Floor 300 South Adams Street Tallahassee, Florida 32301-1731 John Marshall Conrad, Esquire Ausley & McMullen Post Office Box 391 Tallahassee, Florida 32302-0391 Jean Gregory, Clerk Tallahassee-Leon County Planning Commission City Hall 300 South Adams Street Tallahassee, Florida 32301-1731
Findings Of Fact At all times pertinent to the allegations contained in the Administrative Complaint, the Respondent, Theodore C. Boldt, was a professional land surveyor registered by the State of Florida under license Number LS002387, granted after examination on July 9, 1976, with an expiration date of January 31, 1989. The Department of Professional Regulation, Board of Professional Land Surveyors, (Board), was and is the state agency charged with the regulation of land surveying in this state. On August 5, 1985, the Board entered a Final Order in which it concluded Respondent had violated various sections of the Florida Statutes and Rules. The Board suspended Respondent's license to practice land surveying for six months and, inter alia, required him to submit twenty-five surveys representative of his land surveying practice, accompanied by field notes and record plats for review by the Board. Respondent has submitted fifteen of the surveys, the first ten of which were accepted by the Board. Survey eleven through fifteen, however, were determined to be unsatisfactory. On the basis of that Board determination, an Administrative Complaint was filed in this case alleging that the five surveys failed to meet minimum acceptable standards and thereby constituted a violation of Florida Statutes. The surveys in question were evaluated by Walter A. Paxton, Jr., a registered land surveyor for fifteen years, who has spent a total of thirty-five years in the surveying field. During the course of his career, he has done several thousand surveys and has never had a complaint filed against him. As a part of his practice, he keeps up with the Rules and Standards of the profession by review of agency bulletins and letters and by taking continuing education seminars. Mr. Paxton graded these surveys utilizing a Minimum Standards Probation Report Checklist which identified numerous items for evaluation and grading. Grades available included violation; acceptable, which means that the answer meets the requirements of the rules; not applicable, which means that the subject matter does not pertain to the case under consideration; and marginally acceptable, which refers to an error of a minor nature, such as a typographical error, which is not a true violation of the Rule setting forth minimum standards. With regard to the first survey evaluated, Survey Exhibit 11, Mr. Paxton found one violation. Under the pertinent rule, each survey must fall into a descriptive category to be designated on the drawing. In this case, Respondent described the survey as a "Boundary" survey when, in fact, it should have been described as "As Built." A "Boundary" survey is generally utilized only for raw acreage and this property had a structure built on it. Mr. Paxton also found one marginally acceptable item in that the survey did not reflect the relevant Rule under which the survey was conducted. As to Survey Exhibit 12, Mr. Paxton found two violations. Again, the type of survey described was wrong and the survey failed to show the lot dimensions on the West side of the final drawing. The field notes reflected 81 feet for the West side of the lot. Of the four marginally acceptable issues, the first dealt with the completeness of the survey and relates to the Respondent's failure to put in the total dimensions as described above. In the second, the drawing failed to show the bearings on the finished product. The third relates to Respondent's failure to indicate the adjoining lot and block number on the South side of the drawing. The fourth pertains to Respondent's failure to reflect the Rule number in his certification. This last was a deficiency in each of the five surveys in question. As to survey Number 13, Mr. Paxton found one violation which again related to Respondent's use of the term "Boundary" survey instead of "As Built" on a survey of a lot on which a structure has been erected. Two marginally acceptable items related to the failure to show the Rule in the certification and Respondent's failure to list both lot and block when identifying lots adjacent to the property under survey. This, too, is a repeat deficiency. In the fourth survey, Number 14, Mr. Paxton found three violations and three marginally acceptables. The violations related to the Respondent's failure to show a Block identification on the survey and his showing only of the lot number. The second was that Respondent's field notes did not indicate a closure on elevation, but instead, showed only the elevation from the benchmark to a point on the ground. Respondent admitted this was a violation. The third related to Respondent's failure to indicate the original benchmark on the drawing but only the site benchmark. In this case, Respondent admits to this but indicates he could not find the original benchmark because of the distance from the site of the survey. He described the search therefor as being "hard" to do. The marginally acceptable items on this survey again relate to Respondent's failure to show the Rule number in the certification portion of the survey; his failure to include the Block number in addition to the Lot number on the sketch; and his failure to identify adjoining property Lot and Block numbers on the drawing. The fifth survey contained two violations and four marginally acceptable items. The violations were, again, the failure to properly describe the survey as "As Built", and the failure to indicate angles on the field notes. The four marginally acceptables relate to the Respondent's failure to refer to the Rule in his certification; his failure to indicate the block number as well as the lot number on the sketch; the failure to maintain acceptable quality field notes (the failure to list the angles as required); and the failure to reflect on the second sketch of this property a revision date indicating the first sketch was changed. Based on the above identified violations and marginally acceptable items, Mr. Paxton concluded that the surveys in question here do not meet the acceptable standards of the State of Florida for surveys and it is so found. Respondent does not deny that the actions alleged as violations or marginally acceptable areas occurred. He objects, however, to the fact that they were described as violations. Mr. Boldt has been in the surveying profession for 49 years, having started with his father at the age of 10. It is his practice not to put the Block number on a survey unless Lots beside or behind the Lot being surveyed are in a different Block. This practice has been accepted by various banks and the county since he has been doing it and certainly since 1983, when the subject was made a matter of Rule. By the same token, banks and the county have also for years accepted without question his use of the descriptive term, "Boundary" for the type of survey. Accepted use is irrelevant, however, if the rules in question prescribe otherwise. From his testimony it can only be gathered that Respondent complies with the Rules "when he can." When Mr. Paxton pointed out that the requirements identified here appear in the Rules of the Board, Respondent pointed out that the Rules were "new Rules". This approach to the profession of land surveying, while satisfactory to him, is not acceptable when measured against the Board rules.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent's license as a registered land surveyor in Florida be suspended for 18 months with such suspension to be stayed for a probation period of 18 months under such terms and conditions as the Board of Professional Land Surveyors may specify. RECOMMENDED this 29th day of August, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 29th day of August, 1988. COPIES FURNISHED: G. W. Harrell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399 Theodore C. Boldt 5424 Hayden Blvd. Sarasota, Florida 33582 Allen R. Smith, Jr. Executive Director DPR, Board of Professional Land Surveyors 130 North Monroe Street Tallahassee, Florida 32399-0750 Bruce D. Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
