Findings Of Fact The Petitioner, Paul A. Wroblewski, is a transition candidate for licensure as a landscape architect. By "transition" candidate it is meant that Petitioner began the licensing process when the Department utilized a different examination for licensure. Petitioner successfully passed Section 3, entitled "Design Application," of that prior test, the U.N.E. Most recently, Petitioner took the examination for licensure administered by the Department on June 15-17, 1992. This test, the Landscape Architect Registration Examination (LARE), was graded by licensed landscape architects in a national grading session administered by the Council of Landscape Architectural Registration Boards (CLARB). The Department received the scores from CLARB and then reported them to Petitioner. Petitioner's scores were as follows: EXAM SECTION MINIMUM TO PASS SCORE ACHIEVED SECTION STATUS SECTION 2 PROGRAMMING & 75.0 79.0 PASS ENVIRONMENTAL ANALYSIS SECTION 3 CONCEPTUALI- ZATION & COMMUNICATION 75.0 68.0 FAIL SECTION 4 DESIGN SYNTHESIS 75.0 81.0 PASS In order to apply for licensure, all sections of the examination must be passed. The challenged section in this case, Section 3, contained five separate vignettes that were graded by two independent scorers. The raw scores given by the graders were then translated to a pass/fail/neutral response for each vignette. Additionally, vignette 2 was double weighted. The total number of translated scores for Section 3 was twelve (5 vignettes graded by 2 examiners with an extra 2 scores for the double weighted vignette). In order to achieve the minimum score of 75.0, the examinee had to obtain a minimum number of passes and neutrals which translated to the numerical score of 75. With regard to vignette 1, Petitioner's response was graded by four graders: of the four, three found Petitioner's response to be a "fail" score; one found the Petitioner's response to be a "neutral." With regard to vignette 2, Petitioner's response warranted a "fail" score. With regard to vignette 3, Petitioner's response warranted a "fail" score. With regard to vignette 4, Petitioner's response warranted a "fail" score. With regard to vignette 5, Petitioner's response was regraded and given a "pass" score. Assuming the testimony of Petitioner's witness to be the most credible as to the scoring of Petitioner's examination, Petitioner would have received two neutral scores, two pass scores, and eight fail scores. Such scores would have been insufficient to receive a numerical score of 75. After the examination was administered, CLARB graded the Petitioner's examination and mailed the results of the test to the Department on October 15, 1992. Petitioner received his grades from the Department by letter dated January 4, 1993.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That Department of Business and Professional Regulation, Board of Landscape Architects, enter a final order dismissing Petitioner's challenge to his examination scores. DONE AND RECOMMENDED this 1st day of October, 1993, in Tallahassee, Leon County, Florida. Joyous D. Parrish 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 1st day of October, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2646 Rulings on the proposed findings of fact submitted by the Petitioner: 1. None submitted Rulings on the proposed findings of fact submitted by the Respondent: 1. Paragraghs 1 through 10 are accepted. COPIES FURNISHED: Paul A. Wroblewski 15150 South West 128th Avenue Miami, Florida 33186 Vytas J. Urba Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0750 Angel Gonzalez Executive Director Board of Landscape Architect 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0766p Jack McRay Acting General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Certain stipulations of fact were entered into by Petitioner and Respondent and accepted by the Hearing Officer. Those stipulations of fact are set forth below as Findings of Fact in this cause: "Petitioner, CHRISTINE DIANE ZARLI, [McDonough] is an applicant for licensure by examination to practice architecture in the State of Florida. The architecture examination in the State of Florida is of two (2) parts, one of which is the written examination given in December of each year and the other of which is a site and design (sic) [Part (a)] which is given in June of each year. Petitioner has met all requirements for admittance to the licensure examination." "Petitioner took the design and site plan portion of the National Architecture Examination in June, 1981. This portion of the examination consist (sic) of a twelve (42) hour sketch problem involving design and site considerations. The examination is administered by the office of Examination Services of the Department of Professional Regulation, and is supplied to the State of Florida as well as to all of the jurisdictions of the United States by the National Council of Architectural Registration Boards (NCARB). The examination itself as noted above involves the design of a structure by an applicant including requirements for placing the structure on the site, elevations, building cross-sections, facades and floor plans." "Information supplied to the applicant includes a preexamination booklet setting forth the architectural program to be accomplished and the various requirements to which the applicant is expected to apply himself (sic) in order to receive a passing grade. At the time of the examination itself, other information is supplied to the applicant to enable him (sic) to more adequately design the structure requested and perform the necessary technical architectural requirements. In general, the purpose of the examination is to require the applicant to put together a design and site plan solution in response to a program submitted to him (sic) by NCARB. This portion of the examination, therefore, allows the national testing service grading the examination and through them the Florida Board of Architecture to determine whether the applicant is able to coordinate the various structural, design, technical, asthetic, energy and legal requirements which are tested in written form in the other portion of the examination given in December of each year." "The grading of the site and design problem is accomplished by the review of the applicant's product by at least three (3) architects selected by the various architectural boards of some twenty (20) states who are then given training by NCARB to standardize their conceptions of the minimal competence required for a passing grade. Each architect-grader is then asked to review various solutions submitted by applicants on a blind grading basis. That is, the grader has no knowledge of the name or state of origin (sic) of the solution which he is grading. The grader is instructed to take into consideration various criteria as set forth in Rule 21B-14.03, F.A.C. Graders are instructed to make notations for areas of strength and of weakness on the grading criteria and then are to determine, based upon an overall conception of the applicants (sic) submission, whether or not a passing grade of three (.3) or four (4) as set forth in Rule 21B-14.04, F.A.C. (sic) [has been achieved]. In order for an applicant to pass he must receive at least two (2) passing grades from the three (3) architects who independently grade the applicant's submission. [That is, at least two of the three graders must have scored the applicant with a passing score.]" The architects chosen as graders by the NCARB for the design and site plan portion of the examination are required to participate in an extensive exercise designed to achieve uniformity in grading by all graders. The graders are instructed to review the solutions of the applicants quickly for an overall impression. They are further directed to score the solution on the basis of that first impression. They are specifically asked not to regrade solutions or to analyze specific points of presentation. The graders are instructed that the grading concept is a holistic concept and that the basic assumption of that holistic grading concept is that each of the factors involved in design skills is related to all the other factors and that no one factor can be separated from the others. The graders are instructed that they must judge each solution as a whole grading the solution for their impression of its totality. They are told that an examinee is entitled to make some mistakes, recognizing that the problem is hurriedly executed in a tense situation, without recourse to normal office reference materials and without the customary time for deliberation and critique by others. The graders are directed to give each solution a holistic score of 1, 2, 3, or 4. 1 is Very Poor (failed), 2 is Poor (failed), 3 is Minimally Acceptable (pass), and 4 is Good (pass). No evidence has been presented in this proceeding from which it can be concluded that the instructions to the graders and the rules for the administration of this test were not followed. Thus, it is found that the three graders who graded Petitioner's solution did not know Petitioner's identity nor her state of origin and did not know, at the time they graded her solution, the grade placed on that solution by their fellow graders. Each of the three graders independently assigned a score of 2, or Poor and failing, to Petitioner's solution. Although testimony was presented with regard to the strengths and weaknesses of certain specific elements of Petitioner's solution, no evidence was presented from which it can be found as a matter of fact that the solution, when considered holistically, was deserving of a grade higher than that assessed by the three independent graders.
Findings Of Fact 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
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 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 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.
The Issue The ultimate issue in the instant case is whether Petitioner's challenge to the failing grade he received on the Building Design section of the June, 1989, architecture licensure examination should be sustained.
Findings Of Fact Based upon the record evidence, the Hearing Officer makes the following Findings of Fact: The architecture licensure examination utilized by the Department of Professional Regulation is a national examination prepared by the National Council of Architectural Registration Boards (NCARB). In June, 1989, Petitioner took the Building Design section of this licensure examination, which was the only section of the examination he had not previously passed. A candidate must pass all sections of the examination to qualify for licensure. The Building Design section of the examination is a practical test. Candidates are given a test booklet which contains a description of the environmental and programmatic requirements for a hypothetical building and site and then directs the candidates to "synthesize this information into a coherent, aesthetic concept for the building and site and to graphically convey [their] solution in the required drawings." The required drawings must be completed within twelve hours. Because of its length, this portion of the examination can be physically demanding. Moreover it is typically difficult to pass. Normally only 35-40% of the candidates receive a passing grade on this section of the examination. 1/ The candidates' solutions are graded by jurors who are selected in accordance with guidelines developed by NCARB. Jurors must have a minimum of five years experience as a licensed architect. Jurors gather at regional sites throughout the country where they grade the solutions over a two and a half to three day period. Each juror is furnished with a NCARB Jurors' Manual in advance of the grading session. The manual provides detailed information regarding the standards and criteria the jurors are expected to apply in evaluating the drawings submitted by the candidates. The jurors also receive training and instruction regarding the grading process at the grading site before they begin grading the candidates' solutions. The training and instruction are provided by master jurors, who have considerable experience in grading this portion of the examination. Each master juror oversees approximately eight to ten jurors. A master juror will not permit a juror under his or her supervision to commence grading until he or she is satisfied that the juror understands the grading process and will reasonably apply the requisite standards and criteria in evaluating the candidates' drawings. The master juror's supervisory responsibilities with respect to a juror do not end when the decision is made to allow the juror to begin grading. The master juror regularly monitors the grades given by the juror. If the juror's grades are on the average markedly higher or lower than the grades given by the other jurors, the juror will be counseled by the master juror. Jurors are reminded throughout the grading session that, in grading the candidates' work, they should take into consideration that the candidates merely need to demonstrate that they can perform "at minimum level capability" and that the candidates had only 12 hours to prepare their drawings. Test solutions are randomly distributed to the jurors for grading. The jurors are unaware of the identities of the candidates whose drawings they are evaluating. Generally, jurors spend approximately three to five minutes reviewing a candidate's drawings before deciding on the grade to give the candidate. This is a sufficient amount of time to evaluate the candidate's work. After coming to a decision on the matter, the grade is recorded on a score sheet and entered in a computer. The juror must assign one of the following five numeric grades to each set of drawings he or she reviews: 0 (when the candidate submits blank pieces of paper); 1 (very poor); 2 (unacceptable); 3 (acceptable); and 4 (very good). The latter two grades are passing grades. The remaining grades are failing grades. The grade given is intended to reflect the juror's assessment of the candidate's entire work product on this portion of the examination. In addition to assigning one of the foregoing numeric grades, the juror is required to check the appropriate box on the score sheet to indicate "up to three areas of weakness" if he or she has assigned a failing grade. Each candidate's drawings are graded by a least two different jurors,. They assign grades without knowing what grade the other juror has given. If the candidate receives a grade of 3 or 4 from both jurors, he or she passes. If the candidate receives a grade of 0 or 1 from both jurors, he or she fails. If the candidate receives any other combination of grades, a third juror will review and grade the candidate's drawings. If the third juror assigns a grade of 3 or 4 and one of the other juror's had also assigned a grade of 3 or 4, the candidate passes. If the third juror assigns a grade of 0, 1 or 2 and one of the other jurors had also assigned a grade of 0, 1 or 2, the candidate fails, unless his or her three grades are 1/2/3, 2/3/2, 2/4/2 or 2/2/3. Under such circumstances, the candidate's work product will be reviewed and graded by a master juror. If the master juror assigns a grade of 3 or 4, the candidate passes. If the master juror assigns a grade of 0, 1 or 2, the candidate fails. The Building Design section of the June, 1989, examination involved the design of a two-story religious life center on a college campus located in Kalamazoo, Michigan. The test booklet that Petitioner and the other candidates received upon their arrival at the testing location described in a clear and concise manner the environmental and programmatic requirements of the project, as well as the type of drawings that had to be produced, to wit: an upper level floor plan/site, lower level floor plan, east elevation and building section. In addition, the booklet gave notice that these drawings would be evaluated in accordance with the following grading criteria: Your solution will be graded based on the following categories. To pass this examination, a solution must be at least minimally acceptable in every major category. Program Requirements Development of All Programmed Spaces Conformance to Square Footage Requirements Compliance with Required Spatial Relationships Design Logic Circulation Spatial Relationships/Proportions/ Adjacencies Compatibility to Existing Context Code Compliance Fire Wall Separations Means of Egress Handicapped Accessibility Requirements Technical Aspects Material Selection and Wall, Floor and Roof Assemblies Structural Systems, their Appropriateness and Integration Mechanical Systems Completeness and clarity of Presentation, Adherence to Test Instructions, or Required Drawing(s) Missing NOTE: Solutions which have a required drawing missing, are unintelligible, or are drawn with the use of color, press- on letters, or transfer drawings, will automatically receive a grade of FAIL. Petitioner's drawings were reviewed and graded by three jurors and a master juror. He received grades of 2, 3 and 2 from the jurors and a grade of 2 from the master juror. The score sheets submitted by the master juror and the jurors who gave Petitioner a grade of 2 reflect the following: one found Petitioner's drawings to be weak in the areas of design logic-circulation and technical aspects-structural systems 2/; another deemed the drawings to be deficient in the areas of design logic- circulation and code compliance-means of egress; and the third was of the view that the drawings were unacceptable in the area of code compliance-means of egress. Petitioner's drawings, in fact, were deficient in all of these areas 3/ and he therefore deserved to receive a failing grade on the Building Design section of the June, 1989, licensure examination. 4/ CONCLUSION$ OF LAW Any person seeking a license to practice architecture in the State of Florida must apply to the Department of Professional Regulation to take a licensure examination if he or she is not qualified for licensure by endorsement. Section 481.209(1), Fla. Stat. The licensure examinations given by the Department must "adequately and reliably measure an applicant's ability to practice [architecture.]" Section 455.217(a)(a), Fla. Stat. The Department must "use professional testing services to prepare, administer, grade and evaluate the examinations, when such services are available and approved by the [B]oard of Architecture." Section 455.217(1)(a), Fla. Stat. The National Council of Architectural Registration Boards (NCARB) offers professional testing services that have been approved by the Board of Architecture by rule. Fla. Admin. Code Rule 21B-14.001. In accordance with the mandate of Section 455.217(1)(a), Florida Statutes, the Department utilizes these services in testing applicants seeking to become licensed architects. NCARB's "testing format . . . recognizes that some subjectivity is inherently part of the examination [grading process]. But the testing system seeks to minimize professional bias of individual graders by a training and testing format which [is designed to produce] fairly uniform results." Harac v. Department of Professional Regulation, Board of Architecture, 484 So.2d 1333, 1337 (Fla. 3d DCA 1986). An applicant who fails to attain a passing grade on the licensure examination is entitled to an administrative hearing on the matter conducted pursuant to Chapter 120, Florida Statutes. Sections 455.229 and 455.230, Fla. Stat.; Fla. Admin. Code Rule 21-11.012. The burden is on the applicant to establish by a preponderance of the evidence that his examination was erroneously graded. See Harac v. Department of Professional Regulation, Board of Architecture, 484 So.2d 1333, 1338 (Fla. 3d DCA 1986)("Ordinarily one who fails a licensure examination would shoulder a heavy burden in proving that a subjective evaluation by an expert is arbitrary"); Florida Department of Health and Rehabilitative Services v. Career Service Commission 289 So.2d 412, 414 (Fla. 4th DCA 1974)("the burden of proof is on the party asserting the affirmative on an issue before an administrative tribunal"'). The proof Petitioner submitted at hearing was insufficient to satisfy this burden of proof. Indeed, the preponderance of the record evidence establishes that the failing grade Petitioner received on the Building Design section of the June, 1989, licensure examination was warranted. In addition to alleging that he should have been given a passing grade on this portion of the examination, Petitioner also advanced the following claims in his petition for an administrative hearing filed in the instant case: 1) the exam was graded improperly insufficient time was allotted for the proper grading of the exam by jurors. a subjective process is used to grade the exam. see additional specific items below. * * * the grading process is unfair confidentiality of previous jurors grades are not kept from subsequent jurors. confidentiality of test taker's probable nationality, etc. is not maintained. the ETS was contracted by the State of Florida without proper bidding procedures. 5/ non-subjective grading is a prerequisite for fair grading and was not provided. The Dept. of Professional Regulation has allowed a campaign by private interests to influence the grading and licensure of architect candidates. The American Institute of Architects has acted on a campaign to increase architect's compensation by limiting the number of professionals licensed by the Department of Professional Regulation. This influenced the grading of the exam and licensure of architects in Florida. No non-A1A member architects are state board members and A1A membership is a de facto requirement. The attempts to limit the number of architects to be licensed comes at a time when large numbers of women and minority applicants are applying for licensure. d. Mr. Garcia is a minority applicant and was substantially affected. Petitioner's claim that "a subjective process is used to grade the exam" finds support in the record. That subjectivity plays some role in the grading process, however, is not, standing alone, a basis upon which to overturn the results of a licensure examination. To prevail, an unsuccessful applicant must also show that those who subjectively evaluated his or her examination acted arbitrarily or without reason or logic in giving him or her a failing grade. See Harac v. Department of Professional Regulation, Board Qf Architecture, 484 So.2d 1333, 1337 (Fla. 3d DCA 1986); State v. Board of Electrical Examiners for Jacksonville Beach, 101 So.2d 583, 586 (Fla. 1st DCA 1958). No such showing was made in the instant case. The remaining allegations made in paragraphs 1, 3 and 4 of Petitioner's petition are not supported by any persuasive competent substantial evidence. Accordingly, these allegations are also without merit.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Architecture reject Petitioner's challenge to the failing grade he received on the Building Design section of the June, 1989, architecture licensure examination. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th day of April, 1990. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 1990.
The Issue Whether the Petitioner is entitled to a passing grade on the "Integration of Technical and Design" portion of the licensure examination administered in June of 1997.
Findings Of Fact In July 1997, Petitioner sat for Section 5 of the Landscape Architect Registration Examination that had been prepared by the Council of Landscape Architectural Registration Boards (CARLB). CARLB is a national organization that prepares licensure examinations for several states, including Florida. Section 5, styled Integration of Technical and Design Requirements, contains 5 vignette problems, each of equal weight. Petitioner received a passing grade for problems 1 and 3. When her responses were initially scored, she did not receive a passing grade for problems 2, 4, and 5. Her responses were re- scored at her request. She did not receive a passing score for these three problems following the re-scoring of her responses. For Petitioner to have passed Section 5, she would have had to have a passing score on three of the problems. 1/ The candidates were required to prepare design development details for a terrace area. The two problems at issue in this proceeding pertained to the construction of a free- standing wall (vignette problem 2) and the construction of a pool (vignette problem 4). The candidates were to assume that the soils were stable and that the frost depth was 24 inches. The scoring for the five problems required the grader to first determine whether the design by the candidate met the criteria to be scored. Critical issues were identified by the committee that prepared the examination and were part of the scoring criteria used by the graders of the examination. If it did not meet that criteria, the candidate received a grade of "s," which is a failing grade. If it met the criteria to be scored, the grader next determined whether the candidate missed any critical items. If there were missed critical items, the candidate received a score of "c," which is a failing grade. If there were no critical items missed, the grader continued grading the design until a final grade was determined. When Petitioner's responses to problems 2 and 4 were initially scored, she received a grade of "c" for both problems. When her responses to the two problems were re-scored, she received a grade of "c" for problem 2 and a grade of "s" for problem 4. For the purposes of scoring the examination, the term "Critical Failure," for which the candidate would receive a grade of "c," is defined as: solution indicates a life/safety error or fails to demonstrate the primary knowledge being tested on the vignette problem. For the purposes of scoring the examination, the term "unscoreable" [sic] for which the candidate would receive a grade of "s" is defined as: the solution is blank or fails to follow basic problem requirements given in the vignette problem statement. Problem 2 required the candidates to draw a cross- section of a free standing wall. The candidates were instructed to label materials, fasteners, finishes, and/or joining materials. Among the critical issues identified for problem 2 are the following, which Respondent asserts that Respondent failed to meet: 2/ Stone veneer is not tied to the wall. Fails to show compacted subbase and/or subgrade (i.e., compacted and undisturbed subgrade or compacted granular base shown). There was a dispute between Petitioner's expert witnesses and Respondent's expert witnesses as to whether Petitioner's response to vignette problem 2 should have received a passing grade. Respondent's expert was of the opinion that masonry ties should have been used to tie the stone veneer to the wall, and that Petitioner's failure to do so merits a failing grade. Petitioner's experts were of the opinion that Petitioner adequately tied the stone veneer to the wall by using mortar. The conflict in the evidence is resolved by finding that while tying the stone veneer to the wall with masonry ties is the preferred method, using only mortar is an acceptable method. Using only mortar does not meet the definition of a critical failure issue. Respondent's expert also was of the opinion that Petitioner's failure to show that the area under the footing of the wall was compacted subgrade is a critical fail issue. Petitioner showed that certain areas above the footing were to be compacted subgrade, but she clearly did not show the area under the footing to be compacted subgrade. Respondent established that this is a critical failure issue because the failure to erect the wall on compacted subgrade could impair the structural integrity of the wall. This failure justified the failing grade, given Petitioner's response to problem 2. Vignette problem 4 required Petitioner to show the cross-section of a poured-in-place concrete pool. Among other instructions, the candidates were told to include a permanent combination drain/overflow structure and to label all critical dimensions. The only critical issue for problem 4 was the following: "Pool does not extend to or below frost depth (from top of water elevation)(dimensioned, labeled or noted)." Initially, Petitioner's response to problem 4 was awarded a score of "c." When it re-scored, the grade was changed from a "c" to an "s." Respondent's expert testified that the design was re- scored as an "s" because of the manner Petitioner's depicted the drain/overflow structure. In her notes, she indicated that the drain/overflow structure was a "2 x 18" high standpipe with dome removable from floor drain." The structure she described was not the structure she drew. As drawn, the drain/overflow structure would not have worked because it could not have been removed from the floor drain. The manner in which she drew the drain/overflow structure established that Petitioner was not entitled to a passing grade for problem 4. Petitioner's design did not place the bottom of the pool at or below the frost depth and she did not dimension, label, or note, the frost depth. Her experts argued that frost depths are not a factor that needs to be considered in Florida and that her failure to address the frost depth issue should not be a critical failure issue. That argument is rejected because Petitioner was not at liberty to ignore the fact that the hypothetical structure was to be built in an area with a frost depth of 24 inches. 3/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order that dismisses Petitioner's challenge to her grades to problems 2 and 4 of the "Integration of Technical and Design" portion of the licensure examination administered in June of 1997. DONE AND ENTERED this 10th day of March, 1999, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 10th day of March, 1999.
Findings Of Fact On March 9, 1973 Peterson, an architect registered in Florida, submitted a proposal "for preparation of design and construction drawings" for remodeling an existing residence to a new law office (Exhibit P-5). This was assigned on March 13, 1978 by attorney Anderson, who also remitted the required $200 retainer fee. Pertinent to this case, the contract provided for services to be rendered as: "Contract documents for permits and construction to include architectural plans (site floor plan, elevations and sections) and engineered structural and electrical drawings; "fee was $1,000 payable $200 on signing and $800 upon completed contract documents for permits." Any other services were at $20 per hour, including design changes after approval of preliminary drawings. The plans Peterson prepared showed the removal of a load bearing wall, without comment or provision for structural additions required by the demolition of the wall. Although the plans were not sealed, Anderson paid the $800 balance and bids were requested. The one bid (Exhibit R-4) was considerably more than budgeted, therefore the project was delayed. After a time, Anderson got interested in the project again but Peterson was unavailable so another architect was used and the project was completed. Thereafter, Anderson's requested reimbursement from Peterson was refused and this complaint was filed. Two registered Florida architects testified as experts for the Petitioner. Peterson's plans did not meet minimum architectural standards, particularly as to omission of substitute structural members for the removal of the load bearing wall. Although, structural changes could have been added by addendum, plans must be complete prior to obtaining permits and bids, and the acceptance of the full amount of the fee. In mitigation, Respondent agreed that he misinterpreted Anderson's understanding and desires but thought the standard procedure was followed; he indicated that this is the first time he has been in this type of situation. More particularly, Peterson intended to exercise his right to prepare an addendum that would have provided an appropriate structural substitution for the load bearing wall, after the ceiling was opened up; he considered the original plans for the wall as schematic only. He assumed the project was not going forward and the bidding process was merely to get prices.
