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.
The Issue Whether Petitioner should be granted sufficient additional credit for exam factors which would be sufficient to receive a passing grade on the design implementation portion of the June 1989 landscape architecture examination.
Findings Of Fact In June 1989, Petitioner, Deborah Martohue, was an examinee on Section 4, Parts A and B, of the Uniform National Examination for Landscape Architects. She had previously passed Sections 1, 2, 3, and 5 in the June 1988 examination. The test is administered by the Office of Examination Services of the Department of Professional Regulation. 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 subjective portions of 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. Prior to the administration of the exam, master graders from all 43 states who use the exam meet and critique both the examination questions and the evaluation guide to insure uniformity. By notice, Petitioner was advised by the Office of Examination Services that she had received a failing scaled score of 64.8158 on Section 4, Design Implementation, of the examination. A minimum scaled score of 74.5 is required for a passing grade. On October 30, 1989, Petitioner reviewed her examination and using the evaluation guide, disputed 25 points concerning the scoring on Section 4 of the examination. As a result of Petitioner's concerns, the Board assigned a new person to regrade her examination. As a result Petitioner's overall scaled score was raised form 64.8158 to 73.1489. 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 the hearing, Petitioner objected to the scores received on Section 4A, Factors 2 and 3, out of a total of four factors, and Section 4B, Factors 1,3,4,5, and 6, out of a total of nine factors, of the examination. It is Petitioner's position that the graders had used subjective standards in evaluating her solutions to the problems, and that they had failed to take a sufficient amount of time to evaluate her answers. In addition, Petitioner contended that the examiners had failed to note a number of correct answers for which she was not given credit. Other than her own testimony, Petitioner did not present any other competent evidence to support her contentions. In support of its position, Respondent presented the testimony of C. Michael Oliver, a longtime registered landscape architect and master grader with five 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 scaled score of 70.3712, 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 70.3. Through a detailed analysis, Oliver pointed out the infirmities in each of Petitioner'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, she had prepared unsafe designs, failed to satisfy all criteria, or gave incorrect answers. The evidence does not support a conclusion that Petitioner's examination was graded arbitrarily or capriciously, or that Respondent failed to conduct the examination fairly, uniformly and in accordance with its own rules and regulations, or that the examination instructions were insufficient and misleading.
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 1989 landscape architecture examination. DONE AND ENTERED this 30th day of August, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-1567 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner did not file proposed findings of fact. Respondent's proposed findings of fact. Accepted in substance: paragraphs 1, 2, 3, 4, 7, 9, 14, 15. Rejected: paragraphs 5, 6, 8, 10, 11, 12, and 13 (restatement of the testimony or argument) COPIES FURNISHED: Deborah Martohue 1315 Margate Avenue Orlando, FL 32803 Vytas J. Urba, Esquire Senior Attorney Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Patricia Ard Executive Director Landscape Architecture Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Kenneth E. Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792
The Issue The issues for determination in this case are whether certain portions of Amendment RU-27 to the Sarasota County Comprehensive Plan, as adopted in Sarasota County Ordinance 96- 027, are in compliance with Chapter 163, Part II, Florida Statutes, and Rule 9J-5, Florida Administrative Code.
Findings Of Fact Petitioner, GROWTH-RESTRAINT AND ENVIRONMENTAL ORGANIZATION, INC. (GEO), is a non-profit environmental advocacy organization. By stipulation, GEO is an “affected person” as defined in Section 163.3184(1), Florida Statutes. Petitioner, ENVIRONMENTAL CONFEDERATION OF SOUTHWEST FLORIDA, INC. (ECOSWF), is a Florida non-profit corporation which has a number of corporate and individual members in Sarasota whose corporate purposes may be affected by RU-27. ECOSWF has engaged in a variety of advocacy and educational activities in Sarasota County and submitted oral comments to Sarasota County during the adoption of RU-27. Petitioner, MIAKKA COMMUNITY CLUB, INC. (MCC), is a non- profit community corporation whose members primarily reside in Sarasota County. By stipulation MCC is an “affected person” as defined in Section 163.3184(1), Florida Statutes. Petitioner REBECCA AYECH (AYECH) owns property and resides in Sarasota County and submitted oral and written comments to Sarasota County on RU-27. By stipulation AYECH is an “affected person” as defined in Section 163.3184(1), Florida Statutes. Respondent DEPARTMENT OF COMMUNITY AFFAIRS (DEPARTMENT) is the State land planning agency, with responsibility to review plan amendments under Chapter 163, Part II, Florida Statutes pursuant to Sections 163.3184, 163.3189, Florida Statutes. Respondent SARASOTA COUNTY (COUNTY) is a local government with responsibility to prepare a comprehensive plan and any required amendments thereto pursuant to Sections 163.3167, 163.3171, Florida Statutes. The Challenged Amendment Ordinance 96-27, also known as amendment RU-27, was adopted by Sarasota County on April 30, 1996. RU-27 substantially revised the future land use element (FLUE) and future land use map (FLUM). Sarasota County is approximately 563 square miles in size. The revisions to the FLUM contained in RU-27 as a whole substantially affect approximately 305,000 acres. Petitioners’ only challenge to RU-27 as a whole is that the plan improperly fails to incorporate a five-year time frame for land use. In all other respects, Petitioners’ challenge is limited to two parcels of land comprising approximately 200 acres located immediately east of I-75 and immediately north of Fruitville Road. These parcels are identified as “A” and “C” on page 5 of Petitioners’ Exhibit 40. On the pre-amendment FLUM, Parcels A and C are designated semi-rural. “Semi-rural” provides for residential densities up to one unit per two acres. The post-amendment FLUM provided for the following land uses for parcels A and C: the western half of Parcel A was "major employment center/interstate regional office park" (MEC/IROP) and the eastern half was "moderate density residential" (MDR); the northern (approximate) third of Parcel C was "moderate density residential" (MDR), and the southern two thirds was "major employment center" (MEC). MEC is described in the FLUE as: Coordinated development of industrial, commercial, service and governmental uses within a park-like setting" which is encouraged in MEC. Commercial general uses, which are customarily accessory and incidental to the primary uses allowed within a MEC may be permitted, provided that such commercial uses are located and oriented internally, are consistent with an adopted Critical Area Plan or Development of Regional Impact, are located at least 300 feet from the boundary and do not exceed five percent of the total land area. Class A quality type development is encouraged, particularly along 1-75 pursuant to FLUE Policy 3.3.5. MDR-type residential densities can be allowed in the MEC districts up to 25 of the area consistent with FLUE Policy 3.1.2. All development within an MEC must be consistent with an adopted critical area plan for the property under FLUE Policy 3.3.3. Implementing Zoning Categories for MEC are: PCD, PID, I, ILW, GU and PRD. MEC/IROP FLUE policies permit "planned office parks including high technology research and development centers" pursuant to FLUE Policy 3.3.4. All development within an MEC/IROP must be consistent with an adopted critical area plan for the property under FLUE Policy 3.3.3. Implementing Zoning Categories for MEC/IROP are: PCD, PID, I, ILW, GU and PRD. MDR as described in the FLUE Policy 3.1.1 is development within the Urban Service Area (USA) having "gross densities equal to or greater than two dwelling units per acre and less than five dwelling units per acre." Implementing Zoning Categories for MDR are: RSFI, RSF2, RSF3, RSF4, RMH and PRD. Subject Properties Parcels A and C had initially been identified as a "study area" in the transmitted version of RU-27. At the adoption stage public hearing the Sarasota County Planning Department staff presented recommendations as to the designation of Parcels A and C and the extension of the Urban Service Area to encompass those parcels. At the time of the adoption of RU-27, Parcel A was substantially undeveloped, and consisted of about 60-70% pine flatwoods; 35% mesic hammock; and three small freshwater wetlands. There was a dolomite waste water treatment facility in the northwest corner. Further, a two-lane paved road oriented north-south ran inside of the western boundary, connecting the mining operation to the north with Fruitville Road to the south and then west to 1-75. At the time of the adoption of RU-27, Parcel C was mostly cleared open land with approximately a dozen houses and other structures. Adjacent Area At the time of RU-27's adoption, immediately north of Parcel A was a Florida Power and Light Company transmission line and easement, and north of the easement was a series of mining operations and a Development of Regional Impact industrial and office park development. At the time of RU-27's adoption, east of Parcel A was a low density residential area known as the Fox Creek housing development, generally developed with five-acre parcels. At the time of RU-27's adoption, east of Parcel C was a high density area known as the "Sun `N Fun" recreational vehicle and mobile home park. At the time of RU-27's adoption, across Fruitville Road and to the south of Parcel C was what is known as the "celery fields" parcel. The celery fields have been obtained by Sarasota County as a regional stormwater facility. At the time of RU-27's adoption, south of Fruitville Road on both sides of 1-75 were major employment centers with warehousing and industrial uses. At the time of RU-27's adoption, west of 1-75 and North of Richardson Road was a multi-family residential development under construction. At the time of RU-27's adoption, at the immediate northeast corner of 1-75 and Fruitville Road, was a MEC. It was established in 1993 in Amendment RU-15. The FLUM amendments changed the land use designation on the parcel to the immediate north of the previously existing MEC from semi-rural to MEC. Petitioners do not challenge this change. Parcel C is contiguous to the eastern boundary of the previously-existing MEC. A 24-inch force main water pipeline is scheduled to be constructed along Coburn Road, running along the western boundary of Parcel A, and a new water pumping station is planned for the northern corner of Parcel A. Potable water is available to Parcels A and C. A sanitary sewer (wastewater) pipeline is scheduled to be built by Sarasota County along the north, west and south boundaries of Parcel A. An analysis of the planning for the MEC and MEC/IROP land uses is set forth at pages 30-34 of RU-27. The Department's Compliance Review and Finding On or about December 8, 1995, Sarasota County transmitted a proposed amendment to the comprehensive plan including amendment to the FLUE and FLUM. Sarasota County requested that the Department apply the Objections, Recommendations and Comments review process. The Department reviewed the proposed amendment, and notified the County on or about March 1, 1996, that the Department had seven objections to the proposed amendment under Chapter 163 and Chapter 9J-5, Florida Administrative Code. None of the objections pertained to Parcels A or C directly. In addition, the Department objected based upon alleged inconsistencies with the Regional Policy Plan, Goal 7, Regional Issue F and Goal 9, Regional Issue E; and based upon inconsistency with the State Comprehensive Plan, Goal 7, Policies 24 and 25 and Goal 9 Policy 3. None of the state or regional agencies which commented on RU-27 to the Department at the transmittal or adoption stage registered any objections to RU-27. The Florida Department of Transportation reviewed the amendment and had no objections. The Southwest Florida Water Management District reviewed RU-27 and registered no objections. The District commented that the proposed amendment did not address the District's pending Southern Water Use Caution Area rule and its potential effects on land use and development within the County. The Southwest Florida Regional Planning Council reviewed the proposed RU-27 amendment and determined it to be consistent with the Regional Policy Plan. The Department of Environmental Protection offered no comments or objections to the amendment. On or about April 30, 1996, the County transmitted the adopted amendment (Ordinance RU-27) to the Department. RU-27 was a major revision of the FLUE. Sarasota County made changes in the transmitted version of RU-27 in the adoption stage, including changes to the FLUM. Among the changes to the transmitted amendment were: updated (to 1995) population estimates and projections; development capacity calculations; existing land use and cover maps, "minor corrections to the FLUM," updating of the FLUM "to show recent government acquisitions and changes to the FLUM that affected specific relatively small areas," and minor changes to several policies. The Department determined that the plan amendment adopted in Ordinance RU-27 was in compliance. The Department published notice of intent to find Ordinance RU-27 in compliance on June 26, 1995, in the Sarasota Herald-Tribune. Petitioners filed a timely Petition challenging the Department’s intent to find Ordinance RU-27 in compliance. In Paragraph 4.a. of the Petition, Non-Compliance with Section 163.3177, it is alleged that the subject portion of RU-27 violates Section 163.3171, Florida Statutes, because (1) it causes the FLUM not to be based on the projected population of Sarasota County; (2) it allows urban sprawl into new areas without correcting public facilities deficiencies; (3) it fails to recognize important environmental features (messic hammock, wetlands, pine flatwoods); and (4) it fails to account for I-75 as an evacuation route when it is projected to be severely over- stressed for evacuation purposes. The evidence fails to establish any requirement that the designation of each parcel be mathematically justified in the plan or the effect of the designations at issue on the demographic analyses supporting the plan. As part of the plan amendment process, Sarasota County analyzed the growth trends in the northern versus the southern half of the county, and found that the northern half of the county had limited residential capacity for the next ten years, with a projected buildout by 2006. The limited supply justified an additional amount of additional residential capacity. The evidence fails to establish the existence of any public facilities deficiencies that would be affected by the amendment. Native habitats receive protection from other provisions of the comprehensive plan during the development review process, even under the designations applied in RU-27. The evidence fails to establish that the amendment would have any adverse impact on I-75’s ability to carry traffic in an emergency. The subject area is not a hurricane evacuation zone, but is planned to serve as a safe area to absorb evacuees from other coastal regions of the county. Timing of RU-27 vs. the EAR Petitioners allege that the subject portion of the amendment violates Section 163.3191, Florida Statutes, because it was transmitted and adopted prior to the adoption of Sarasota County’s Evaluation and Appraisal Report (EAR). Sarasota County’s EAR was adopted on February 20, 1996. RU-27 was adopted on April 30, 1996. Sarasota County notified the Regional Planning Council that RU-27 was an EAR-based amendment, but did not specifically notify the Department. The Department, however, considered and reviewed RU-27 as an EAR-based amendment. Other local governments have failed to specifically designate EAR-based amendments in the past. On such occasions the Department has contacted the local governments to ascertain the status of such amendments during the Department’s review process. Alleged Inconsistency with State Comprehensive Plan Petitioners allege that the amendment "does not comply" with the following parts of the State Comprehensive Plan: 187.201(8), (10), (17), (18), (20), (23), (24), Florida Statutes. The evidence fails to establish any inconsistency with the State Comprehensive Plan. The Southwest Florida Regional Planning Council found the amendment to be consistent with the State Comprehensive Plan. Additionally, the more specific and credible expert opinion is that the designations of the parcels at issue are consistent with the State Comprehensive Plan. Data and Analysis Petitioners allege that the amendment does not comply with Rules 9J-5.005(2)(a) and 9J-5.006, Florida Administrative Code, in that it is not based on relevant and appropriate data and analysis. The evidence fails to establish the existing Future Land Use Element was not based on appropriate data and analysis, or that the entirety of RU-27 was not based on appropriate data and analysis. The evidence fails to establish that the data supporting the amendment were not collected and applied in professionally accepted manner. A consultant’s study prepared for the County in 1989 had estimated the unadjusted demand for new office park development in the I-75 corridor to consume approximately 640 acres by the year 2010. These data, prepared for an I-75 Corridor Plan, were incorporated into the 1989 update of the Comprehensive Plan. Based on this information, the County had designated 770 acres of MEC/IROP land to allow for environmental constraints. Although located at an I-75 interchange, Parcels A and C had not been designated for Urban uses in part because of drainage problems and the habitat located on parts of Parcel A. Because of recent drainage improvements in this area and more stringent environmental site planning requirements incorporated into the plan after 1989, this particular location has improved substantially as to its suitability for MEC/IROP development. By designating a portion of this site for MEC/IROP uses, RU-27 increased the supply of MEC/IROP land by approximately 60 to 70 acres. No other MEC/IROP lands were added by RU-27, resulting in a total available supply of approximately 840 to 850 acres. When compared with the 1989 consultant’s study, the total MEC/IROP acreage exceeds absolute demand by approximately 33 percent. The MDR contained within the subject parcels amounts to approximately 120 acres. At the maximum possible density of five units per acre, 600 residential units could be constructed on these parcels, or 540 units more than the maximum allowable under the previous Semi-Rural designation. The total urban residential capacity of the urban-designated area in RU-27 is 43,912 units, meaning that the new urban development permitted on these parcels constitutes a maximum or 1.23 percent of the total number of potential units. Based on the County’s existing land use controls and other constraints, the County projects that such lands will actually develop at even lower densities than the maximum allowed within the FLUM designations. The actual zoning density applied in Sarasota County is less than Future Land Use designation, except in the rural area. In the text of the RU-27 amendment, the County justified the need for the designation of the MDR at this particular location as being to “serve as a transition between lands designated as Major Employment Center and existing Semi- Rural Development.” Population Projections Petitioners allege that the amendment does not comply with Rules 9J-5.005(2)(e) and 9J-5.006(1)(g), Florida Administrative Code, in that it is not based on required population projections. RU-27 is based upon residential as well as seasonal population projections. The MDR areas designated on Parcels A and C by RU-27 were intended to provide a buffer between the newly-created MEC and MEC/IROP land uses on those parcels and existing residential development. Petitioners essentially challenge the changed land uses on Parcels A and C to new residential MDR capacity based upon the allegation that the expansion of the Urban Service Area to include the parcels is "over-allocated" because it exceeds the 133% market flexibility factor. The evidence, however, fails to show that the land uses designated for Parcels A and C is inconsistent with the projected population growth, particularly in light of the faster growth rate in the northern portion of Sarasota County. Planning Time Frames Petitioners allege that the amendment does not comply with Rule 9J-5.005(4), Florida Administrative Code, because the FLUE does not contain a five-year planning time frame. The challenged portions of the amendment (Parcels A and C) do not specifically relate to the planning time frame requirement, however, it is clear that the plan as amended contains at least two planning time frames, 1995-2005 time frame associated with the Urban Service Area and provision of capital improvements, and 1995-2010 for long-range capital improvements planning. Internal Consistency with Goals, Objectives, Policies Petitioners allege that the amendment does not comply with Rule 9J-5.005 (5), Florida Administrative Code, due to alleged internal inconsistency between the two FLUM changes and the following parts of the FLUE (as amended by RU-27). (1) Analysis. The Petition refers to portions of the Analysis section: "Development Capacity of the Urban Area"; "Coordination of Capital Improvements and band Uses"; "Planning for Residential Uses"; "Planning for Industrial Uses"; and "Summary." The evidence does not establish that the changed land uses on Parcels A and C are inconsistent with the totality of the data and analysis which the County considered. The County Commission designated Parcels A, B and C as a "study area", there was a pre-existing MEC on a contiguous parcel, and Parcel B was an urban enclave proximate to the Interstate. The map depicting the urban planning area did not include Parcels A and C; however, the map was intended to include the pre-RU-27 urban areas as a basis for beginning work on the amendment. The evidence does not establish an inconsistency between the Analysis Section and Parcels A and C. (2) Intent. The Petition did not identify any specific provision of the Intent section alleged to be insistent with the FLUM designation of the two parcels. The Intent Section does not set forth goals, objectives or policy as meant by Rule 9J- 5.005(5)(b), Florida Administrative Code. The evidence does not establish an inconsistency between the Intent Section and the designation of the two parcels at issue. (3) Policy 1.2.1. This policy requires that potential land use incompatibilities be mitigated through certain design techniques. This policy applies to the issuance of development orders and rezonings, not plan amendments. The evidence does not establish an internal inconsistency with Policy 1.2.1. (4) Policy 2.2.1. This policy requires that development orders be conditioned on adequate levels of service. A plan amendment, however, is not a development order. The evidence does not establish an internal inconsistency with Policy 2.2.1. (5) Policy 2.2.2. This policy requires that public expenditures for infrastructure and services be concentrated to serve areas within the Urban Services Area (USA) boundary. The parcels in question are within the USA boundary. The evidence does not establish an internal inconsistency with Policy 2.2.2. (6) Policy 2.3.1. This policy calls for a minimum dwelling unit potential within the USA boundary of 133% of the projected housing demand. Parcels A and C are within the USA, therefore no inconsistency exists. (7) Policy 2.3.2. This policy provides that the Future Urban areas will be considered for inclusion within the USA, based on the Evaluation and Appraisal Report (EAR). The evidence does not establish an internal inconsistency with Policy 2.3.2. (8) Policy 2.3.4. This policy explains that the FLUM “establishes a long-range maximum limit on the possible intensity of land use,” but not a minimum. The designation of Parcels A and C in this regard is consistent with Policy 2.3.4. (9) Goal 3. This goal calls for the orderly development of lands needed to accommodate the projected population growth. . . .” The designation of Parcels A and C reflects a balanced approach to population growth in the northern part of Sarasota County. The evidence does not establish an internal inconsistency with Goal 3. (10) Policy 3.1.1. This policy provides guidelines for the application of the residential density ranges provided in the comprehensive plan to subsequent development orders. The designation of Parcels A and C is not a development order. The evidence does not establish an internal inconsistency with Policy 3.1.1. (11) Policy 3.1.7. This policy requires the County to amend and adopt appropriate ordinances and plans to promote mixed use, pedestrian and bicycle friendly communities within two years. Within the context of RU-27, the designation of Parcels A and C provides a reasonable plan to promote the mixed use of this property and incorporate the area in an orderly manner. The evidence does not establish an internal inconsistency with Policy 3.1.7. (12) Objective 4.1. Objective 4.1 provides for the establishment and implementation of planning programs to address development and redevelopment opportunities. The evidence does not establish an internal inconsistency with Objective 4.1. (13) Policy 4.1.7. This policy calls for the development and preparation of a subsequent overall plan for the areas east of I-75 in Sarasota County. The policy does not prohibit or otherwise limit the uses previously designated or the uses set forth in RU-27. The evidence does not establish an internal inconsistency with Policy 4.1.7. (14) Appendix I. Appendix I contains the capacity methodology and the designation of the two parcels at issue. The Petition did not allege that the methodology contained in Appendix I failed to comply with Chapter 163 or Rule 9J-5, and there is no showing of an internal inconsistency. Concurrency Petitioners allege that the subject portion of the amendment does not comply with Rules 9J-5.0055 and 9J- 5.006(2)(a), Florida Administrative Code, because all required public facilities will not be available concurrent to the development permitted by RU-27. There is no evidence of any inadequacy of the plan’s existing concurrency management systems or their consistency with state statute or rule. There are no existing public facilities deficiencies at Parcels A and C. The designation of Parcels A and C in the amendment would not exacerbate any existing public facilities deficiencies. While the designation of Parcels A and C would have some impact on roads, sanitary sewers, stormwater management, and other facilities and services, the evidence does not establish that required facilities will not be available concurrent to development. Urban Sprawl Petitioners allege that the subject portion of the amendment does not comply with Rules 9J-5.006(3)(b)8 and 9J- 5.006(5), Florida Administrative Code, because it allows and encourages urban sprawl. There is no existing or historic problem of urban sprawl in Sarasota County. Sarasota County has historically provided only the capacity needed to support the population projections. RU-27 established the urban service area for Sarasota County. The change in land use for the subject properties in RU-27 did not cause urban sprawl. Sarasota County has for planning purposes a “tight” plan, in that it contains effective land use controls, works well within the planning timeframes, and contains a much lower allocation of new land for growth than other land use plans reviewed and approved by the Department. The approximate 200 acres of Parcels A and C do not constitute a “substantial area” of Sarasota County. Parcels A and C do not constitute a substantial area of the FLUM, which encompasses approximately 305,000 acres. As determined by the planning reviewers, the changes to the adopted FLUM pertain to relatively small areas. The changes to the FLUM for Parcels A and C substantially represent an “urban to urban” change. The rule indicators of urban sprawl are not implicated by the changed land use of Parcels A and C. Sarasota County’s plan has effective development controls in place to mitigate for or discourage urban sprawl. The new FLUM categories for Parcels A and C are not properly characterized as “low intensity” or “single-use development.” The new FLUM categories for Parcels A and C are not properly characterized as “in excess of demonstrated need.” The new land uses for Parcels A and C constitute "nodal development" which is not urban sprawl and not “radial strip development.” The new land uses for Parcels A and C do not constitute “leapfrog” development, but constituted “infill” of the existing and surrounding development to Parcels A and C. 102 The amended land uses for Parcels A and C do not reflect premature, poorly-planned development. Parcels A and C do not have adjacent active agricultural areas with which to conflict. Regional Policy Plan Petitioners claim that the amendment does not comply with the following parts of the Regional Policy Plan: Goal 1-9; Policy 10; Goal 11-25; and Policy 1e. The Department and Southwest Florida Regional Planning Council determined that the amendment is consistent with the Regional Policy Plan. There is no evidence of record regarding any inconsistency with the Southwest Florida Regional Policy Plan.
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
The Issue Whether an amendment to the Broward County Comprehensive Plan, PC-92-20, which was adopted by ordinance number 92-50 rendered the Broward County Comprehensive Plan not "in compliance", within the meaning of Section 163.3184(1)(b), Florida Statutes?
Findings Of Fact The Parties. The Petitioner, the Florida Department of Community Affairs (hereinafter referred to as the "Department"), is a state agency. The Department is charged pursuant to the Local Government Comprehensive Planning and Land Development Regulation Act, Part II of Chapter 163, Florida Statutes (hereinafter referred to as the "Act"), with responsibility for, among other things, the review of comprehensive growth management plans and amendments thereto. The Respondent, Broward County (hereinafter referred to as the "County"), is a political subdivision of the State of Florida. The County is the local government charged with the responsibility pursuant to the Act for developing a comprehensive plan for future development in the unincorporated areas of the County and the approval of amendments to the County's comprehensive plan. The Intervenor, Susan Edn, is a resident of, and owns real property located in, Broward County, Florida. Ms. Edn submitted written and oral comments to the County concerning the plan amendment at issue in this proceeding. General Description of the County. The County is a generally rectangular-shaped area located on the southeastern coast of Florida. The County is bounded on the north by Palm Beach County, on the south by Dade County, on the east by the Atlantic Ocean and on the west by Collier and Hendry Counties. The County's Comprehensive Plan. The County adopted a comprehensive plan as required by the Act on March 1, 1989 (hereinafter referred to as the "County Plan"). Volume 1 of the County Plan includes the Broward County Land Use Plan, which applies to, and governs, future land use throughout the County, including the unincorporated areas of the County. The Future Land Use Element. The County Plan includes a Future Unincorporated Area Land Use Element dealing with future land use in the unincorporated areas of the County. See Volume 2 of the County Plan, Edn exhibit 15. The Future Land Use Element of the County Plan required by the Act consists of the Broward County Land Use Plan and the Future Unincorporated Area Land Use Element. The Future Land Use Element identifies a number of land-use categories, including a "residential" category. Densities of development on land designated "residential" are also established. There are eight designated residential future land uses identified and defined in the Future Land Use Element of the County Plan. Those designations and densities are as follows: Estate (1) Residential: up to 1 dwelling unit per gross acre. Low (2) Residential: up to 2 dwelling units per gross acre. Low (3) Residential: up to 3 dwelling units per gross acre. Low (5) Residential: up to 5 dwelling units per gross acre. Low-Medium (10) Residential: up to 10 dwelling units per gross acre. Medium (16) Residential: up to 16 dwelling units per gross acre. Medium-High (25) Residential: up to 25 dwelling units per gross acre. High (50) Residential: up to 50 dwelling units per gross acre. The density of development for the Rural Estate category is up to 1 dwelling unit per gross acre. The density for the Rural Ranch category is up to 1 dwelling unit per 2.5 gross acres or up to 1 dwelling unit per 2 net acres. The County Plan includes Goal 08.00.00, titled Public Facilities and Phased Growth, and Objective 08.01.00, which provide: GOAL 08.00.00 PHASE GROWTH CONSISTENT WITH THE PROVISION OF ADEQUATE REGIONAL AND COMMUNITY SERVICES AND FACILITIES. OBJECTIVE 08.01.00 COORDINATE FUTURE LAND USES WITH AVAILABLE REGIONAL AND COMMUNITY FACILITIES AND SERVICES Coordinate future land uses with the availability of regional and community facilities and services sufficient to meet the current and future needs of Broward County's population and economy without endangering its environmental resources. The following policies related to Goal 08.00.00 and Objective 08.01.00 are included in the County Plan: POLICY 08.01.04 In order to protect the health, safety, and welfare of Broward County's residents, development should not be permitted in those portions of Broward County with inadequate potable water and wastewater treatment facilities. . . . . POLICY 08.01.09 Private septic tanks and wells in Broward County should be phased out and replaced with centralized water and wastewater systems, where necessary, to protect the health, safety, and welfare of Broward County's residents. POLICY 08.01.10 Local government entities shall require existing development on septic tanks and private wells to hook up to centralized sewer and water facilities as they become available. The evidence failed to prove that the amendment which is the subject of this proceeding is inconsistent with the policies quoted in finding of fact 14 or any other goal, objective or policy of the County Plan. The Subject Amendment: PC-92-20. The Board of County Commissioners of the County adopted Ordinance 92- 50 on December 9, 1992. Ordinance 92-50 included nineteen amendments to the County Plan, including amendment PC-92-20. PC-92-20 (hereinafter referred to as the "Challenged Amendment"), is the amendment to the County Plan challenged in this proceeding by Ms. Edn. The Challenged Amendment amends the land use designation of approximately 2,453 acres of land. Of the 2,453 total acres, the designation of 2,272 acres is changed from Estate (1) Residential to Rural Ranch and the designation of the remaining 180.7 acres of land is changed to Rural Estate. Pursuant to the Challenged Amendment the change in designation also results in a change in density from one dwelling unit per acre to a density of one dwelling unit per two and one-half acres for the Rural Ranch and a density of one dwelling unit per two net acres for the Rural Estate. The Subject Property. The 2,453 acres of land which are the subject of the Challenged Amendment are located in the unincorporated area of the County, east of Southwest 148th Avenue, south of Griffin Road, west of Flamingo Road and north of Sheridan Street. Dwellings currently exist on approximately 85 percent to 90 percent of the subject property. Existing dwellings are served by septic tanks and wells. Pursuant to the County Plan, without the Challenged Amendment, the 10 percent to 15 percent of the subject property not yet developed may be developed at a higher density using septic tanks and individual wells. The subject property is not currently serviced by a sewer service provider or a water service provider. The County Plan recognizes and accepts the foregoing existing conditions. See Map 12-1 of the County Plan Map Series titled "Existing and Proposed Sanitary Sewer Service Area", and Map 14-1 of the County Plan Map Series, titled "Existing and Proposed Potable Water Service Area." The Challenged Amendment does not modify the existing conditions of the subject property except to decrease the density of development allowed on the property. The subject property is not located within a public wellfield zone of influence. See County Plan Land Use Plan Natural Resource Map Series, titled "Existing and Planned Waterwells & Zones of Influence." The Department's Review of the Challenged Amendment. The Department reviewed the Challenged Amendment as originated by the Act. After review of the Challenged Amendment, the Department raised no objections. As part of the Department's initial review of the Challenged Amendment pursuant to Section 163.3184(6), Florida Statutes (1992 Supp.), the Department considered comments of various entities, including the Florida Department of Environmental Protection, the South Florida Regional Planning Council, the South Florida Water Management District and others concerning the Challenged Amendment. Some of those comments were critical. The critical comments concerning the Challenged Amendment pertain to the use of wells for potable water and the use of septic tanks in the effected area. Those concerns were considered by the Department and ultimately determined to be insufficient to find the Challenged Amendment not "in compliance." The Department's conclusion was based, in part, upon the fact that the Challenged Amendment will reduce the demand on sewer by 477,400 gallons per day and the demand on water by 380,800 gallons per day. The Department's conclusion was also based upon the fact that the majority of the area effected has already been built-out. Ms. Edn offered the critical comments of various governmental entities who provided comments to the Department pursuant to Section 163.3184, Florida Statutes (1992 Supp.), into evidence. Evidently, Ms. Edn believes that those comments were not adequately considered by the Department or that they prove that the Challenged Amendment is not "in compliance." The evidence failed to prove either suggestion. The evidence failed to prove that the Department's consideration of critical comments about the Challenged Amendment was not adequate or that the Department's conclusions concerning those comments were not reasonable and proper. On the contrary, the evidence proved that the Department did consider all comments and decided that the Challenged Amendment was "in compliance" despite the critical comments. The evidence also proved that the Department's rationale for still finding the Challenged Amendment in compliance was reasonable. Additionally, Ms. Edn failed to present evidence to support a finding that the entities that made critical comments concerning the Challenged Amendment during the initial review of the Challenged Amendment still believe those comments are valid. Therefore, the evidence failed to prove that the critical comments concerning the Challenged Amendment were still valid as of the date of the final hearing of this matter. Data and Analysis-Sewer and Potable Water Services. The evidence failed to prove that the County did not provide data and analysis concerning the impact of the Challenged Amendment on sewer and potable water services. Facility and service capacity data and analyses concerning the impact of the Challenged Amendment on the availability of, and the demand for, sewer and potable water services was provided to the Department by the County. Based upon the data and analysis provided, the Challenged Amendment will tend to reduce the demand on sewer and potable water services. The evidence failed to prove that the data and analysis provided was inadequate. Data and Analysis-Soil Suitability. The evidence failed to prove that the County did not provide data and analysis concerning soil suitability. The County submitted data and analysis concerning the impact of the Challenged Amendment on soil and natural resources, including waterwells and zones of influence, to the Department. The County concluded that the Challenged Amendment would preserve the natural function of soils in the area and Ms. Edn failed to prove the inaccuracy of the County's conclusion. See the County Land Use Plan Natural Resource Map Services titled "Soils." Data and Analysis-Wellfield Protection. The evidence failed to prove that the County did not provide data and analysis concerning the impact of the Challenged Amendment on wellfield protection. The County relied upon the County Land Use Plan natural Resource Map Series titled "Existing and Planned Waterwells and Zones of Influence" and concluded that the area impacted by the Challenged Amendment is not located within a public wellfield zone of influence. The evidence failed to prove the inaccuracy of the County's conclusion. Data and Analysis-Biscayne Aquifer. The evidence failed to prove that the County did not provide data and analysis concerning the impact of the Challenged Amendment on the Biscayne Aquifer. The South Florida Water Management District has not designated the area of the County impacted by the Challenged Amendment to be a "prime groundwater recharge area" for the Biscayne Aquifer. Proliferation of Urban Sprawl. Pursuant to Section 163.3177(6)(a), Florida Statutes, (1992 Supp.) and Rule 9J-5.006(3)(b)7, Florida Administrative Code, comprehensive plans are required to discourage the proliferation of "urban sprawl". The Department has provided a definition of "urban sprawl" in a November 1989 Technical Memorandum: . . . scattered, untimely, poorly planned urban development that occurs in urban fringe and rural areas and frequently invades lands important for environmental and natural resource protection. Urban sprawl typically manifests itself in one or more of the following patterns: (1) leapfrog development; (2) ribbon or strip development; and (3) large expanses of low-density single- dimensional development. The evidence failed to prove that the foregoing definition or any other pronouncement in the Technical Memorandum constitutes policy of the Department. The evidence also failed to prove that the reduced densities allowed by the Challenged Amendment constitute "urban sprawl." The State Comprehensive Plan. The State Comprehensive Plan is contained in Chapter 187, Florida Statutes. Goals and Policies of the State Comprehensive Plan are contained in Section 187.201, Florida Statutes. The evidence failed to prove that the Challenged Amendment is inconsistent with any provision of the State Comprehensive Plan. The Regional Comprehensive Policy Plan. The South Florida Planning Council has adopted the Regional Plan for South Florida (hereinafter referred to as the "Regional Plan"). The Regional Plan was adopted pursuant to Chapter 186, Florida Statutes, to provide regional planning objectives for the County, Dade County and Monroe County. In the petition filed in this case, Ms. Edn alleged that the Challenged Amendment is inconsistent with Goal 13.4.10 of the Regional Plan. Goal 13.4.10 of the Regional Plan provides the following: Within the study area of the Southwest Broward/Northwest Dade Subregional Study, any existing or new user of on-site disposal systems in Broward County and within the Dade County urban development boundary should be required to hook up to a centralized wastewater collection when available. The evidence failed to prove that centralized wastewater collection is "available" to require existing or new users of on-site disposal systems in the area of the Challenged Amendment to hook up to. The evidence failed to prove that the Challenged Amendment is inconsistent with the Regional Plan.
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 Maurice Fox ("Developer" or "Respondent" hereafter) filed his original application for approval of a development of regional impact with the Palm Beach County Board of County Commissioners in April, 1974. An extensive application was filed. Personnel from the staff of the County's Planning, Building, and Zoning Department discussed the application with the Respondent and his representatives, and the staff's recommendations were presented to the Planning Commission and to the Board of County Commissioners. The Respondent made presentations to the South Florida Regional Planing Council, and to the Board of County Commissioners. The Board received input from the Respondent, from the South Florida Regional Planning Council, from its own staff, from the Florida Game and Fresh Water Fish Commission, and from the Flood Control District, which is now the South Florida Water Management District. Palm Beach County was, at that time, a member of the South Florida Regional Planning Council. The Council recommended that the Board of County Commissioners deny the application for development order, maintaining that the proposed development conflicted with the county land use plan, would stimulate excessive migration into the region, would cause an excessive burden upon transportation facilities, did not adequately provide for solid waste disposal, could have an adverse impact upon water quality in the region, and would eliminate a significant habitat for wildlife including several threatened or endangered species. The Game and Fresh Water Fish Commission opposed the proposed project because of its potentially adverse impact upon the wildlife habitat. The Flood Control District considered that the lake system proposed to be operated in conjunction with the development could be maintained in such a way as to negate adverse impacts upon water quality of the region, and did not oppose the project. The County's Planning, Building, and Zoning Department recommended that the development order be issued, and the County Planning Commission concurred. By resolution number R74-700, the County Commission approved the application for development order subject to three conditions on September 3, 1974. This proceeding ensued. During the pendency of this proceeding, Palm Beach County withdrew from membership in the South Florida Regional Planning Council. The County joined the Treasure Coast Regional Planning Council (TCRPC). Since it was granted status as an intervenor, TCRPC has been functioning as the appellant. The South Florida Council has withdrawn from the proceeding. TCRPC has contended that the Board of County Commissioners did not adequately consider the environmental consequences of the proposed development. This contention is not supported by the evidence. The Board of County Commissioners did not have before it all of the evidence that is now before the Florida Land and Water Adjudicatory Commission, but it did have adequate information from which it could assess the environmental impacts of the proposed development, and weigh these impacts against potential advantages and disadvantages of the development. Whether the County Commission made a correct assessment of the ecological consequences of the proposed development is an issue for this appeal. The thought processes by which members of the Commission made the determination are not issues in this proceeding. Maurice Fox acquired the property which is the subject of this proceeding, and which has come to be known as the Fox Property, in 1954. The Fox Property lies in Palm Beach County, and is bordered on the east by State Road 7 as it is presently constructed and as it is proposed for extension. The property will run three lineal miles along State Road 7 when State Road 7 is completed. Okeechobee Road runs through the southern section of the property. The property has roughly a rectangular configuration, and consists of 1705 net acres apart from the rights of way of Okeechobee Road and State Road 7. The proposed development is a retirement community. It would contain 10,004 living units with a population cap of 18,416 persons. Dwelling units would be dispersed in forty five residential pods, some bordering on a lake, others on a golf course. There would be single and mixed story clusters. The maximum rise would be four stories. Two golf courses are proposed for construction, along with a 406-acre lake for sailing, boating, and fishing. A fourteen mile bicycle path that would not cross any roads is proposed for construction around the lake. There would be tennis courts, and at least one swimming pool for each building pod. The main social club would be located on the lake. Each golf course would have a club house. There would be a total of 1028 acres of open space, with approximately fourteen acres preserved in a natural condition. Three church sites have been set aside, along with a four and one half acre civic center, which would include a fire station, security facility, and municipal services. A commercial facility on a twenty five and one half acre tract is planned, with smaller convenience centers located at each of the golf club houses. The most significant feature of the development is a proposed center for geriatric medicine, which would be located on the southeast corner of the property. The center would be owned by a non profit corporation, and would be operated for the public benefit. The Respondent proposes to donate the land for the center. The center would have the following facilities: (a) A medical clinic with group practices of physicians; (b) Emergency facilities and rehabilitation services as a part of the clinic; (c) A retirement hotel for physically or mentally disabled persons who do not require complete nursing care; (d) A nursing home, and facilities that would provide in home services designed to keep older persons in their homes; (e) A nursing school, or continuing education facility that would provide training for staff for the center, and for other facilities. The center would have a significant research function, allowing a group of older persons to be studied over a period of years. The development would be constructed in four essentially, equal phases. Phases for construction of the geriatrics center have not yet been detailed. Local and state licensing would be required in order to operate many of the proposed functions of the center, and planning for construction of the center would need to be coordinated on an on going basis with the development of the retirement community. No evidence was offered that would specifically compare the proposed retirement community with other such communities. It is apparent, however, that the proposed community would provide a desirable place to live. All residences would border either a lake or golf course, and good recreational facilities would be immediately accessible to all residents. The project has been designed in order to maintain open spaces, with as much as seventy five, percent of the area remaining open. The primary benefit that the development would offer is the proposed center for geriatric medicine. The center is a primary altruistic goal of the Developer. The Developer has consulted eminent experts about the proposed center, and the center could provide a means for conducting significant research into illnesses of the elderly, and as a facility for training persons to treat illnesses of the elderly. Florida has a particular need for such an institute, and none of the medical schools in the state presently provide it. Although much is known about the needs for medical care of the elderly, a broader treatment concept has not been adequately developed. Old people are constantly fearful of becoming dependent, and they dread loneliness and bereavement. They have anxiety about spending their last days in a nursing home. The proposed center would address these problems by recruiting sensitive health care personnel, and providing a total care program for residents of the proposed community. Elderly persons require a continuum of care. Institutionalization of older people should be deferred as long as possible. There is a need to develop health services that can be delivered directly to the home. When it becomes necessary to institutionalize older persons, the proposed geriatrics center would accomplish it in a facility near to where they have lived, and to where their friends continue to live. Persons too fragile to stay in their own homes could live in the proposed hotel, and maintain personal relationships and community activities. Such a center as is being proposed would not have to be constructed in connection with a housing project, but it would be helpful to do so. Study would be facilitated due to the ready availability of a group of appropriate persons. The research that could be conducted could provide vital information about diseases of the aged. Some evidence was offered that tends to show that the Respondent may have some difficulty in obtaining all of the pertinent licenses that he will require in order to operate all facets of the proposed center. The evidence does not establish that the center is an impractical goal, but that ongoing planning that accounts for needs of the entire region is necessary. The Developer's motivations are clearly good. He is in part motivated by his own experience in dealing with an aged mother. He is not interested in developing the retirement community unless the center for geriatric medicine can also be developed. With appropriate planning the facility can become a reality, and would be a significant benefit to Palm Beach County, the region, the State of Florida, and indeed to society as a whole. The Fox Property is presently undeveloped. Human activities have had an effect on the property, but the property remains in an essentially natural condition. The property has been diked on all four sides by persons other than the Respondent. These dikes effect the flow of water across the property. While the evidence does not conclusively reveal whether the property has become drier or wetter as a result of human activity surrounding it, the present state of the property leads to a finding that its condition has not changed drastically in many years. The property may now be wetter than it was at some given instant in the past, or it may be drier. What is apparent is that the property has consistently maintained a degree of wetness that would support submerged or emergent vegetation, and that it has provided habitat for wildlife that thrive in transitional areas. Expert witnesses, who testified at the hearing, agreed as to the present characteristics of the property, but their testimony conflicted sharply in characterizing the condition as wet or dry, or as high quality or low quality wildlife habitat. Ecologists have reached no unanimous consensus in defining the term "wetland". The most generally accepted definition has been proposed by the United States Fish and Wildlife Service of the United States Department of the Interior in a "Draft of Interim Classification of Wetlands and Aquatic Habitats in the United States." The definition is as follows: Wetland is land where an excess of water is the dominant factor determining the nature of soil development and the types of plant and animal communities living at the soil surface,. It spans a continuum of environ- ments where terrestrial and aquatic systems intergrade. For the purpose of this classification system, wetland is defined more specifically as land where the water table is at, near, or above the land surface long enough each year to promote the formation of hydric soils and to support the growth of hydrophytes, as long as other environmental conditions are favorable. Permanent flooded lands lying beyond the deep water boundary of wetlands are referred to as aquatic habitats. The definition is compatible with the definition developed by other entities including the United States Corps of Engineers. The definition is also compatible with the Florida Department of Environmental Regulation system of classifying areas as submerged, transitional, and upland. Transitional areas within the Department of Environmental Regulation criteria would be classified as wetlands under the Fish and Wildlife Service definition. Wetlands have commonly recognized ecological values. These values are applicable to all wetlands, varying in quantitative and qualitative degree. In order of importance these values are as follows: First, wetlands provide habitat for an enormous array of plant and animal species, which cannot survive without such a habitat. Many endangered and threatened species require wetland habitats. They have become endangered or threatened because their realm has been diminished. Second, wetlands serve to remove and store excesses of certain elements from the environment. As a result of agricultural activities and as a result of large scale usage of fossil fuels, nitrogen and sulfates have become generally excessive in the environment. Wetlands serve a filtering and storage function for these potential pollutants. Third, wetlands serve an important water quality function. In periods of heavy rainfall wetlands serve to store and slowly release waters. Wetland vegetation serves to filter excess nutrients, from rainfall and from runoff, especially phosphorus and nitrogen. Fourth, wetlands are extremely productive in biological terms. Wetland vegetation takes in nutrients, and causes a net production of oxygen in the process of respiration. On a global, and even on a local scale, wetlands can thus be very important to air quality. Fifth, wetlands have an important impact upon the climate. Stored water in wetland areas maintains a warmer climate in areas surrounding the wetland. Wetlands also serve to fuel rainfall in an area. These wetland attributes apply to all wetlands in varying degrees, and do not apply as profoundly to other ecosystems. In addition to these values, wetlands serve an important food producing function since they serve as breeding grounds for fish, have important esthetic and recreational value, and have research and educational importance. Preservation of wetland areas has become an important environmental concern because there has been a very large loss of wetland areas to development. It has been estimated that more than one third of all wetlands in the United States, and more than half of the wetlands in Florida have been drained. Utilizing the Fish and Wildlife Service definition, from 900 to 1400 acres of the 1705 acre Fox Property can be classified as wetland. Only approximately 60 acres of the tract is aquatic, in other words wet at all times. Other areas are, however, sufficiently dominated by an excess of water to fall within the Fish and Wildlife definition. The Fox Property is not without human influence. The dikes which surround the property have effected the flow of water. "All terrain vehicles" have crossed the area and left their tracks. In some locations this vehicle use has been sufficiently significant that trails have been identified. There has been considerable hunting in the area. Some trash has been dumped, particularly in the areas adjacent to Okeechobee Boulevard. Trees have been removed, and potholes left in their place. In the area south of Okeechobee Boulevard it is apparent that there was considerable agricultural usage in the past which has affected the land. It is also apparent that there has been burning, although not to the extent that the ecological viability of the area has been violated. Exotic pest plants have infiltrated portions of the property. Melaleuca is the most dramatic of these. In small areas of the property melaleuca has become the dominant vegetation. Over a period of time melaleuca will tend to dry out a wetland, but the process is a lengthy one, which may take centuries to complete. Large airplanes fly low over the property disturbing the area with loud noises. Despite these intrusions, the Fox Property is dominated primarily by natural as opposed to human caused conditions. Nine hundred to fourteen hundred acres of the Fox Property display high or moderate wetland values. The remainder of the property displays low wetland values. Some parts of the property display outstanding wetland values. The most significant wetland attribute displayed by the Fox Property is the wildlife habitat that it provides. The habitat on the property is quite varied, and that contributes to its importance for wildlife. Several species on the Florida Game and Fresh Water Fish Commission "Threatened Species List" were actually observed on the property. These are the American alligator, the Florida great white heron, the osprey, the southeastern kestrel, the audubon's caracara, and the Florida sandhill crane. Several species on the Florida Game and Fresh Water Fish Commission "Species of Special Concern List" were also observed. Wildlife on this list are considered to be not as threatened with extinction as those on the "Threatened Species List", but nonetheless of concern. Observed were the little blue heron, the great egret, the snowy egret, the white ibis, the Cooper's Hawk, and the roundtail muskrat. Several other species on these lists thrive in such habitats as the Fox Property, and potentially could be there. The Florida Endangered Species List promulgated by the Game and Fresh Water Fish Commission constitutes species, that are in eminent danger of becoming extinct. None of these species were actually observed on the Fox Property, but the Fox Property provides viable habitat for the wood stork, the Florida Everglade kite, the red cockaded woodpecker, the, Florida grasshopper sparrow, and, the Florida panther. The Everglade kite, the red cockaded woodpecker, and the Florida panther are also on the Federal Endangered Species List. It is because of loss of habitat that these species are of concern, or are threatened, or are endangered. The Fox Property lies adjacent to a wetland area known as the Loxahatchee Slough. This is a major north south surface water drainage basin in eastern Palm Beach, County. Surface water moves across the Slough to the north, feeding the Loxahatchee River, or to the south into what is known as Conservation Area One within the Loxahatchee Preserve. The Fox property is in effect the western boundary of the Slough. The Loxahatchee Slough is a wetlands ecosystem. The Slough, and the National Wildlife Refuge, which surrounds and encompasses it, amount to 145,635 acres. This is primarily wetland. There are other viable wetland areas in the vicinity of the Fox Property which encompass as much as 850,000 acres. The fact that extensive wetlands are near to the Fox Property does not, however, lessen the wetland values of the Fox Property. In fact, the adjoining wetlands augment the wetland values that can be ascribed to the Fox Property, especially in terms of the property's importance to endangered wildlife. The proposed development would include a lake with an area of more than 490 acres. The lake system would provide viable habitat for the Florida alligator, but not for the other species discussed above, except perhaps as an occasional feeding area. These species are becoming scarce because their available habitat is shrinking. They are reclusive, and do not flourish in human residential areas. If the proposed development is approved, the Fox Property will effectively be obliterated as a viable wildlife habitat for many species, including some whose existence is threatened. The proposed lake system would also not perform other important wetland functions to the extent that the Fox Property now does so. The TCRPC has contended that the proposed development would have an adverse impact upon water quality in the region. This contention has not been supported by the evidence. It is apparent that the lake system will not serve the water purifying function that the Fox Property as a viable wet land presently serves. It does appear from the evidence, however, that the lake system can be maintained in such a manner as to not cause an adverse impact upon water quality. One witness testified that the lake is likely to suffer from algal blooms in part because it would be overloaded with phosphorus. This testimony did not, however, consider the effect that the swale system proposed by the Developer will have in filtering phosphorus from runoff which will enter the lake system. The testimony reveals that artificial lakes in the South Florida area have frequently been plagued with poor water quality. It is apparent that if the proposed lake were not properly maintained, its water quality could seriously deteriorate. With proper management, however, good water quality could be maintained. The evidence presented respecting the impact of the proposed development in environmental terms related solely to the proposed development. Whether less ambitious developments could be undertaken on the property without damaging the wildlife habitat or the wetland values was not addressed, and would not have been relevant.
Findings Of Fact Petitioner is an unsuccessful candidate for the landscape architects examination given in June, 1990, (the "examination"). Petitioner achieved a passing grade on Sections 2 and 5 of the examination but failed Sections 3 and 4. Petitioner received a score of 72.8 percent on Section 3 of the examination. The minimum passing score is 75 percent. At Petitioner's request, Respondent regraded Petitioner's answers to Section 3 of the examination. Petitioner's score upon regrade was 73 percent. Petitioner needs 2 percentage points to pass Section 3 of the examination. Petitioner received a score of 54.3 percent on Section 4 of the examination. The minimum passing score for Section 4 of the examination is 75 percent. At Petitioner's request, Respondent regraded Petitioner's answers to Section 4 of the examination. Petitioner's score upon regrade was 60 percent. Petitioner needed 25 percentage points to pass Section 4 of the examination, but waived his challenge to Section 4 during the formal hearing. Petitioner was given proper credit for his answers to Section 3 of the examination. Petitioner should have received and received a score of 73 percent when Respondent regraded Petitioner's answers to Section 3 of the examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's challenge to the score he received for Section 3 of the landscape architect examination given in June, 1990. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 24th day of September 1991. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of September 1991. APPENDIX TO RECOMMENDED ORDER Respondent has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. No notation is made for unnumbered paragraphs. Petitioner did not submit proposed findings of fact. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection Accepted in Finding 2 Accepted in Finding 3 Accepted in Findings 3-4 COPIES FURNISHED: Angel Gonzalez Executive Director Board of Landscape Architecture Board 1940 N. Monroe Street Tallahassee, Florida 32399-0750 Jack McRay General Counsel 1940 North Monroe Tallahassee, Florida 32399-0792 Vytas J. Urba Assistant General Counsel Department of Professional Regulation 1940 North Monroe Tallahassee, Florida 32399-0792 Case No. 91-2120 (continued) Mr. Dale R. Smith 28225 Southwest 172d Avenue Homestead, Florida 33030
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
