Findings Of Fact Don Pierson owns the north one-half of Lot 2 and all of Lot 3, Block 6, Revised Map of Clearwater Beach, and has owned this property for some 20 years. The property is zoned RM-20 and is high density residential developed. Pierson's lot, approximately 95 feet by 87 feet (approximately 8,250 square feet), is empty and is the only vacant lot on the Gulf of Mexico in this area. Until some three years ago this area had been zoned RM-28, which provided for higher density development than does RM-20. The area from Kendall Street north six blocks to Somerset Street bounded on the east by Mandalay Avenue and on the west by the Gulf of Mexico is the only section of Clearwater fronting on the Gulf which is zoned RM-20. This area was built up over the years before zoning controls were in existence, through less restrictive zoning, and down to the present, so there are few buildings in this part of Clearwater Beach that meet current zoning requirements. Petitioner owns the property abutting Pierson's property to the east. The building on that lot was constructed many years ago, before setback lines were established, and balconies on this building extend to the property line; leaving zero setback. The Coastal Construction Control Line, seaward of which construction is prohibited, runs through Pierson's property so as to delete the seaward 5/8ths of Petitioner's property on which a building can be erected. The tidal plane in this area is 13 feet (although evidence was presented at the board hearing that this was being increased to 16 feet). The height of Pierson's property above sea level is five feet, accordingly the ground floor of a dwelling constructed on this lot must be eight feet above ground (or 11 feet if the 16-foot tidal plane is adopted). Maximum building height for a triplex, which is here proposed, is two and a half stories, or 25 feet above sea level. With the ground floor eight feet above ground, a two- story building cannot be erected without a height variance. Pierson proposes to construct a two-story triplex with a lower unit in which he will live comprising approximately 2,200 square feet and the upper story containing two 1,100 square- foot apartments to be occupied as rental units. To accomplish this, he has requested a height variance of six feet to 31 feet, if such a variance is required for a platted lot. Zoning density is consistent with the construction of the triplex proposed. However, zoning regulations require a lot with a minimum width of 100 feet and lot area of 10,000 square feet for the construction of a triplex. Pierson's lot meets neither of these requirements. Several witnesses testified in opposition to the requested variances at the Board hearing.
Findings Of Fact Petitioner occupies a single family residence at 1048 Carlos Avenue, Clearwater, Florida. The property is zoned RS-50, which is single family. The use of the property and use proposed with the variance requested is consistent with this zoning. RS-50 zoning contemplates houses on small lots with a maximum density of 8.7 dwellings per acre. There is a six-foot wood fence along the majority of the west side of Petitioner's property located on the property line. The pool enclosure (screen room) proposed would be partly behind this fence but extend above the fence and extend slightly to the north of the northernmost end of this fence. The setback on the west side of Petitioner's property is five feet. Petitioner proposes to erect the screen room one foot from the west property line for which a four-foot variance is required. Petitioner desires to screen the pool he has a permit to construct so as to facilitate maintenance by keeping falling leaves out of the pool and to increase ventilation in his house by leaving French doors leading to the pool from his house open. Two other screened pools exist in the immediate neighborhood similar to the enclosure proposed by Petitioner. One is located four houses west of Petitioner and the other is six blocks away. None of Petitioner's neighbors object to the granting of the variance requested. No evidence was submitted that a variance was requested or granted for those two other pool enclosures in the neighborhood. The Board's reason for granting the variance and setback for the pool was the pool was in-ground and would not obstruct a view. The reason for denying the variance for the screen room was that it was above-ground and therefore in view. The size pool intended to be installed by Petitioner is 4 feet by 30 feet, which, with concrete apron, will occupy most of Petitioner's lot between the house and the west property line.
Findings Of Fact Petitioner proposes to install an elevator on the south side of the three-story building used as a restaurant located at 1370 Gulf Boulevard, Clearwater, Florida. The area is zoned CG, General Business. As planned, the elevator will extend approximately 9.5 feet into the 30-foot setback on this side of the building and will encroach 8 feet 8 inches into the 30 feet of clear air space. Petitioner's restaurant is located 60 feet north of Appellant's condominiums. When initially constructed approximately 10 years ago, the building now used as a restaurant was part of the condominium complex and used as a clubhouse by the condominium owners. Shortly thereafter, the developers split off the clubhouse from the condominium and obtained a license to operate it as a restaurant. At this time the property comprising the Sand Key Club Condominium and restaurant was under one ownership. The parking established around the restaurant was in compliance with all zoning requirements, and no clear air space requirement was involved. Shortly prior to Petitioner acquiring this property, the restaurant operation was in financial difficulties. When the restaurant operation and property was split off and sold to Petitioner, the parking lot extended 15 feet into the clear air space required by the code. At the time of this sale Petitioner deeded back to Appellant 30 feet on the south side of the restaurant property which resulted in the clear space requirement that did not exist before this 30 feet of property was transferred. The lot on which this restaurant is located is a "narrow parcel" as defined in Section 131.200(b)(1)(b) Building and Zoning Regulations of the City of Clearwater. Accordingly, setback requirements specify that, for a lot 150 feet or greater width, the setback requirements are 20 feet on one side and 40 feet on the other. In accordance with this provision the setback variance requested meets this criteria and the sole issue in this case is the clear space variance requested. Located on the property line dividing the property of Petitioner and Appellant is a planted area (circle or oval) around which automobiles turn to exit and which, to some degree, provides separate lanes for incoming and outgoing traffic over the paved area between the buildings. This planter contains shrubs and palms. The former are higher than 30 inches and the latter higher than 15 feet. The code provides shrubs and berms in the clear space shall not exceed 30 inches in height. Appellant presented testimony that the elevator could be located on the southeast corner of the restaurant or on the north side of the restaurant and thereby not intrude into the clear space. The witness who so testified spent only a few minutes at the restaurant and was unaware of structural problems or relocation of bathrooms that would be involved if the elevator was located in the southeast portion of the building. Petitioner's witness who planned the elevator location had spent many more hours at the building site, had considered other locations for the elevator and concluded the location selected was the most viable option. This evidence is deemed more credible than that respecting the location of the elevator on the southeast corner of the building or on the north side of the building. Located on the north side of the building, the elevator would block the same view space it would block on the south side even though the clear space requirement would not be violated. The proposed location of the elevator will obstruct the view of the Gulf from no part of the Appellant's condominium. Therefore, no occupant of the Sand Key Club will be affected by the proposed elevator insofar as his/her view of the Gulf from his/her condominium is concerned (Exhibit 10). One or two witnesses testified that the Gulf can be seen by a pedestrian on Gulf Boulevard looking from a position between the restaurant and Sand Key Club. However, Exhibit 1 indicates the planter on the property line blocks most of the view of the water and if cars were parked in his parking area which extends 15 feet into the clear view area the water beyond those automobiles could not be seen by a pedestrian on Gulf Boulevard.
The Issue The issue is whether Petitioner should terminate the existing individual plan of employment ("IPE") that was developed pursuant to Section 413.30, Florida Statutes (2001), because the existing IPE is no longer viable. (All chapter and section references are to Florida Statutes (2001) unless otherwise stated.)
Findings Of Fact Respondent has been a client of Petitioner for many years and has received thousands of dollars in benefits from Petitioner in accordance with an existing IPE. The existing IPE provides that Respondent's employment goal is for self- employment as an administrator of a beauty academy in the Orlando metropolitan area. Sometime prior to March 30, 2000, the parties entered into mediation to resolve certain differences between them. On March 30, 2000, the parties executed a Mediation Agreement. The Mediation Agreement required Respondent's business plan to include expenses described as the cost of accreditation and the cost of financial aid software. It also required the Small Business Development Center ("SBDC") at the University of Central Florida to evaluate Respondent's business plan. Petitioner agreed to pay the expenses of accreditation and financial aid software if the SBDC found that the business plan is viable. In relevant part, the Mediation Agreement provided: If the business plan . . . is found by SBDC to be viable and the business plan includes the 2 expenses referred to . . . above, VR agrees to provide theses expenses as part of its services in the IPE. Respondent's Exhibit A On April 4, 2000, the SBDC issued a written evaluation of Respondent's business plan. The parties agree that the business plan evaluated by SBDC includes the requisite expenses. At the hearing, Petitioner claimed that Respondent did not satisfy the relevant requirement in the Mediation Agreement for a finding by SBDC that the business plan is viable, in part, because the written evaluation does not use the term "viable." Petitioner cited no statute, rule, or judicial decision that establishes a technical definition for the term "viable." In the absence of a technical definition, the term should be interpreted according to its common and ordinary meaning. The American Heritage Dictionary of the English Language, at 1915, (4th Ed. Houghton Mifflin Co. New York 2000), defines the term "viable" to mean, "Capable of success or continuing effectiveness; practicable. . . . See synonyms at possible." The written evaluation issued from SBDC to Petitioner's consultant found that Respondent's business plan is viable. In relevant part, the written evaluation finds: . . . this business plan has been very carefully researched and written. It is a thorough description of Sandra's business concept. If implemented as described, this document should serve as tool (sic) to help insure her business success. I would like to add that this plan is more comprehensive than any that I have ever evaluated for Vocational Rehab clients. Respondent's Exhibit A. Petitioner designated the SBDC as Petitioner's agent for the evaluation of Respondent's business plan. SBDC issued the written evaluation to Petitioner's consultant and provided copies to Respondent and others. Petitioner is bound by the findings of SBDC as Petitioner's designated agent. The parties did not agree in the Mediation Agreement that SBDC would, as a condition of Petitioner's obligation to pay expenses, find that Respondent's business would be viable. Rather, the parties agreed, as a condition of funding, to a finding by SBDC that the business plan is viable. Respondent satisfied that express condition of funding. Petitioner knew, or should have known, that SBDC would not make a finding that the proposed business would be viable. In relevant part, the written evaluation issued to Petitioner's consultant stated: As I am sure you know the ability to prepare a "good" business plan does not necessarily mean that someone will or will not be successful. The SBDC, therefore, will not pass judgment on the feasibility or likelihood of success of any business. We limit our remarks to a critique of the plan itself as a written document only. Id. After SBDC issued the written evaluation, Petitioner executed the existing IPE. By letter dated May 23, 2000, Petitioner provided Respondent with a copy of the IPE. In relevant part, the IPE provides that Petitioner will pay for the costs of accreditation and software that were conditioned on the written evaluation from SBDC. The IPE further provides that Petitioner will pay for specific services for counseling and guidance, physical restoration by physicians of Respondent's choice, mental restoration by providers of Respondent's choice, miscellaneous training required for accreditation, maintenance, and transportation. In addition, the IPE provides that Petitioner will pay for other goods and services associated with the new business including auditing expenses, licensing expenses, advertising, a video camera and tripod, video tapes, work clothing, rent in the amount of $16,119, the cost of staff development, office supplies, janitorial services, utilities of $4,400, and a computer workstation. After May 23, 2000, the parties amended the IPE approximately four times to include additional expenses not included in the original IPE. The additional expenses included the cost of beauty equipment and legal fees. Between May 23, 2000, and June 1, 2001, Petitioner disputed some of the expenses submitted by Respondent. When Respondent requested that Petitioner pay a security deposit equal to three months rent for office space for the new business, Petitioner denied the request on the grounds that a security deposit is not rent and that the IPE obligates Petitioner to pay only rent. The proposed landlord refused to register as vendor with Petitioner. A real estate broker agreed to act as the conduit-vendor for the security deposit and rent. However, Petitioner's consultant refused to proceed with the arrangement without approval from his Tallahassee office. The security deposit was rent within the meaning of the IPE. Payment of the security deposit would not have increased the total amount paid as rent but would have come from the monies already allocated to rent. The delay in obtaining approval for the security deposit caused Respondent to lose her option to lease the original office space. Respondent located a second site for the new business, but the new site requires some renovation before it will be suitable for opening. Petitioner refuses to pay the renovation expense on the grounds that such expenses are not rent. On June 6, 2001, Petitioner retained the services of a specialist to provide a market analysis to determine whether the proposed business, as opposed to the business plan, is viable. The specialist issued a written market analysis on June 27, 2001. By letter dated July 23, 2001, Petitioner's consultant advised Respondent that her IPE was no longer viable (the "termination letter"). In relevant part, the letter stated: I have decided that there is no likelihood that your planned services relating to your self-employment as the administrator of a beauty academy will lead to your employment in that capacity. This decision is made for a number of reasons but I shall take the opportunity to list some of them below; 1)the loss of your previously anticipated referrals. . ., 2)my reluctance to provide payment(s) for the required (3 months) security deposit on your intended commercial lease, 3)the continuing unwillingness of [an organization designated as NACCAS] to certify your academy, 4)my belief that you can not qualify as a financial aid approved facility without certification. . . 5)the apparent lack of sponsoring . . . sources 6)my unwillingness to sponsor repairs for your intended place of business, 7)tuition costs higher than those at public institutions in the community and 8)current market analysis suggesting that additional cosmetology/beauty schools in the metro Orlando area would have a difficult time obtaining profitability. (emphasis supplied) Petitioner's Exhibit 1. The preponderance of evidence does not support the findings in grounds 1) and 5) in the termination letter. Respondent testified that she had commitments for referrals and sponsors and provided written statements from approximately 13 sources that supplemented and explained her testimony. The sources of referral and sponsorship include the Sanctuary of Praise Ministries, The Bridge, two radio stations, the NAACP, and the Central Florida Advocate. Grounds 2) and 6) of the termination letter pertain to the security deposit and renovation expenses. A security deposit equal to three months rent is "rent" covered by the IPE. Renovation expenses are not rent but would not increase the total rent in the IPE because the current space is less expensive than the original space. Grounds 3) and 4) in the termination letter are only temporary. The certifying organization is the National Accrediting Commission of Cosmetology Arts and Sciences (the "NACCAS"). After November 15, 2001, Respondent will be eligible to apply for accreditation from the NACCAS and, once obtained, will be eligible for financial aid for her students. The preponderance of evidence does not support a finding pertaining to ground 7) in the termination letter. The parties submitted conflicting evidence on this issue. Ground 8) is a mixed question of fact and law. Petitioner failed to show that there is "no likelihood" that Respondent will achieve her goal of self-employment as an administrator of a beauty academy.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order finding that there is some likelihood that the IPE will lead to Respondent's self-employment as an administrator of a beauty academy; and requiring Petitioner to continue the IPE toward that goal. DONE and ENTERED this 31st day of October, 2001, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of October 2001. COPIES FURNISHED: James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Carl F. Miller, Jr., Director Division of Vocational Rehabilitation Department of Education 2002 Old St. Augustine Road Building A Tallahassee, Florida 32301-4862 Joseph L. Shields, Esquire Department of Education Division of Vocational Rehabilitation Services 2002 Old St. Augustine Road Building A, Room 343 Tallahassee, Florida 32301-4862 Sandra Lewis 3813 Columbia Street Orlando, Florida 32811
Findings Of Fact Appellant currently operates a retail boat sales business in a building he recently (December 1987) constructed at 1011 North Fort Harrison Avenue. In this variance request, he proposes to construct an addition to this building containing space for nine shops on the ground floor and space to exhibit boats for sale on the second floor. The addition will be approximately the same height as the existing building, and no height variances are required. The property on which the proposed addition will be located is zoned CN (neighborhood commercial). Contiguous property approximately 150 feet x 125 feet, owned by Appellant west of that property zoned CN, is zoned RM-8 (multi- family residential with a maximum of 8 residential units per acre). Appellant has removed some thirteen low income and dilapidated residential buildings from the property he acquired. In addition to reducing habitats in a high crime area, Appellant thereby acquired parking spaces for his business. Appellant presently is required to stow most of his boats in racks inside his existing building which makes it difficult, and dangerous, for a customer to take a close look at a boat in which the customer is interested. Boats can be removed from the rack for safe viewing by the customer, but this is a time consuming process requiring several boats to be moved. It is to improve the efficiency of selling boats that motivates Appellant to construct the proposed addition. Rental of the first floor as separate stores is necessary to provide the cash flow needed to pay the investment debt to be incurred. Usage permitted for CN zoned property includes sixteen dwelling units per net acre, minimum open space of thirty (30) percent of the lot area and maximum floor area ratio of three-tenths (0.3). The variances here requested involve open space, an increase of 9 percent to 39 percent and floor area ratio increase from 0.3 to 0.6 approximately. If the PM-8 zoned property was zoned CN, Appellant would not need the variances here requested.
The Issue Whether the Department of Health and Rehabilitative Services' rejection of the Petitioner's bid, based on the facts and figures available on August 12, 1994, was a proper exercise of the Agency's discretion and was not arbitrary, fraudulent, illegal, or dishonest as to HRS lease No. 590:2500.
Findings Of Fact The Respondent Department issued an Invitation to Bid (ITB) for Lease Number 590:2500 for office space in an existing building in a geographic area near Apopka, Florida for a ten (10) year lease with options. The ITB called for net square footage of 14,910 + 3 percent, measured in accordance with the Standard Method of Space Measurement. The ITB and Bid Submittal, including at page 16, Paragraph 10(c) of the Bid Submittal Form lists the documentation that is to be provided to the Respondent at the time of the bid submittal. Included in this list is a requirement that a bidder provide the calculation of the proposed net rentable square feet. Paragraph 10(c) indicates that the square footage calculations are to be based on measurements from the floor plan. Sealed bids were received until 10:00 a.m. on August 5, 1994. Petitioner submitted a completed Bid Submittal form in a timely manner. Petitioner's Bidder Response reflected 14,463 as the net square feet proposed. Respondent Department has occupied the building being offered since 1986. 14,463 is the absolute minimum net square/footage that could be submitted to meet the bid specifications. Petitioner provided no calculations indicating how the net square footage proposed in their bid submittal was calculated, other than page 85 which contained the exterior dimensions of the building bid. The Respondent was entitled to know how the Petitioner calculated the net square feet proposed to determine whether the Petitioner's bid was responsive. Following the bid opening but prior to the rejection of the Petitioner's bid, Petitioner was asked to provide calculations which would provide reasonable assurances to the Department that Petitioner in fact had the minimum net square footage available. The Respondent had no obligation to go back to the Petitioner and ask for such calculations. One day prior to the rejection of the Petitioner's bid, Petitioner faxed a handwritten note to the Department which read as follows: HRS 590-2500 No 5 Bld Size 117'10" x 130'8" Gross Space 115 x 10" x 12810" 115.833 x 128.833 = 14,923.113 deduct 2-sets Bath Rooms - 355.873 Net Rentable 14,567.240 Jim we have calculated our space based on your standard measurements The bid specifications called for a minimum of 2 sets of restrooms for public and 2 sets of restrooms for staff use, for a total of 4 separate sets of restrooms, each set to provide for male and female and meet other requirements. Based on these representations from Petitioner, the Department rejected its bid on August 12, 1994, as non-responsive. This decision was based on the Department's interpretation which concluded that the bid submitted failed to meet the minimum square footage requirements and to provide for the proper number of bathrooms as set forth in the bid specifications. The Department's evaluation concluded that the Petitioner's bid only proposed two sets of restrooms at 355.823 square feet. Deducting another two sets of restrooms at the same size in order to comply with the bid specifications would cause the Petitioner's bid to fall below the minimum square foot requirements as set forth in the bid submittal. Petitioner asserts that the required restrooms can be located within the Petitioner's building, and that there are sufficient minimum square feet available per the bid specifications. In the alternative, Petitioner would show that, under the bid specifications, restrooms could be located either in or out of the building. The Department's decision to seek clarification prior to rejecting the Petitioner's bid was reasonable. The Department having done so, the subsequent submittal by Petitioner of calculations in response to the request for clarification was considered as an addendum to the original bid.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Secretary of the Department of Health and Rehabilitative Services enter a Final Order dismissing the Petitioner's protest and proceed with the award of bid for HRS Lease No. 590:2500. DONE AND ENTERED this 29th day of December, 1994, 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 29th day of December, 1994. COPIES FURNISHED: Terrence William Ackert, Esquire P. O. Box 2548 Winter Park, Florida 32790 Ronald M. Schirtzer, Esquire Foley & Lardner 111 North Orange Avenue Suite 1800 Orlando, Florida 32801 James A. Sawyer, Jr., Esquire District 7 Legal Counsel Hurston Tower, Suite S-827 400 W. Robinson Street Orlando, Florida 32801-1782 Ladd H. Fassett, Esquire Warlick, Fassett, Divine & Anthony, P.A. Post Office Box 3387 Orlando, Florida 32802-3387 Robert L. Powell Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Kim Tucker, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Antonios Markopoulos, Appellant, applied for seven variances on property located at 200 Coronado Drive, Clearwater, Florida, to allow the construction of a 7 to 9 story parking garage covering the property from lot line to lot line. The property in question is a 95 feet x 105 feet parking lot adjacent to a hotel, shops and restaurants owned by Appellant. The first waiver requested was of the minimum lot size of 150 feet on which to build. Since this property was unique in that regard and could never attain the 150 feet minimum dimension, the Board granted that variance. The other six requests for variances involved setbacks and open space requirements. Appellant proposes to build a parking garage with two elevators to lift cars to the various parking levels with the building extending to the lot lines in all four directions. The hotel, restaurants and stores located at this site and owned by Appellant are nonconforming uses. The hotel has 86 rooms and if built today would require a minimum of 86 parking spaces. The stores and restaurants would require additional parking spaces that are now not available. Appellant proposes to construct a garage with approximately 340 parking spaces which he contends are the minimum needed to provide adequate parking for patrons at the hotel, stores and restaurants. At the hearing before the Board, Appellant contended that the parking garage would also serve to relieve parking problems at other establishments in the vicinity. Appellant proposes to have parking customers drive up a ramp through a ticket machine which will dispense a ticket which can be validated at the hotel, restaurants or shops. The car will then be parked by attendants who will drive the car onto an elevator to lift the car to a floor with parking space. This clearly indicates that Appellant is proposing to construct a parking garage which will be open to the general public. Appellant presented testimony that if the setbacks required by the Code were followed on all sides, there would be insufficient square feet per floor to make the parking garage financially feasible. He also presented testimony of the City of Clearwater Traffic Engineer to the effect that construction of a parking garage at this location would not create a traffic problem. Although most, if not all, of the property surrounding Appellant's property are nonconforming with less setbacks than are required by the existing code, none of these properties have been covered lot line to lot line with a structure or structures. The primary emphasis of the evidence submitted by Appellant is that there is insufficient parking at Clearwater Beach, and erection of a parking garage will do much to alleviate this problem.
Findings Of Fact Petitioner, William Everett Warriner, is an applicant for licensure by examination to practice architecture in the State of Florida. The architecture examination in the State of Florida consists of two parts, one of which is a written examination given in December of each year, and the other of which is a Site Planning and Design Test given in June of each year. Petitioner meets all requirements for admittance to the licensure examination. Petitioner took the Site Planning and Design Test portion of the National Council of Architectural Registration Boards (NCARB) in June, 1982. This portion of the examination is a twelve-hour sketch problem involving design and site consideration in which the applicant is graded on his or her design solution to the program requirements furnished, which are identical for each candidate at a given examination, on the basis or certain stated criteria, by trained graders who are registered architects. The examination is administered by the Department of Professional Regulation and is supplied to the State of Florida, as well as to all of the jurisdictions of the United States by NCARB. The examination involves the design of a structure, in this case a small municipal airport terminal building, by an applicant, including requirements for placing the structure on the site, elevations, facades, floor plans, and other aspects. The applicant is supplied with a preexamination booklet which sets forth the architectural program to be accomplished and the various requirements to which the applicant is expected to apply himself in order to receive a passing grade. At the time of the actual examination, the applicant is furnished other information to enable him to more adequately design the facility and demonstrate his command of the architectural requirements. In general, the examination was designed to require the applicant to design a solution to the site plan and the building design problems submitted to him by NCARB. The pertinent portion of the examination allows the examination graders to determine whether an applicant is able to coordinate the various structural design, technical aesthetic, energy, and legal requirements in order to resolve the design and site plan problem. The grading of the Site Planning and Design Test is accomplished by the review of the candidate's product by at least three architects selected by the various architectural registration boards of several states, who are given training by NCARB in an effort to, as much as is possible, standardize their conceptions of the minimal competence required for a passing grade. Each reviewer then assesses the product submitted by candidates/examinees on a "blind grading" basis, that is without knowledge of the identity or geographical origin of the submitter, or of the grade assigned the product by other reviewers/graders. The graders assess the product with a view toward identifying areas of strength or weakness within an overall determination of satisfaction and assign a holistic numerical score ranging from "0" (fail) to "4" (pass). Grades "1" (incomplete) and "2" (poor) are failing grades, and grades "3" (minimally acceptable) and "4" (good) are passing grades. If grades "1" or "2" are awarded, the graders are required to indicate the examinee's weakness, but these indications of weakness must not be arbitrary. All solutions are graded by three examiners, except those solutions to which a "0" has been given by one examiner. Solutions which are not clearly passing or failing are graded by a fourth examiner. In order for an applicant to pass, he must receive passing grades from at least two examiners, who independently grade his solution to the problem. A passing grade, as was stated above, is defined as a holistic grade of "3" or "4" as set forth in Rule 21B-14.04, Florida Administrative Code. Petitioner received a grade of "2", which is a failing grade, from each of the three graders who graded his examination. Though the Petitioner demonstrated an effort to comply with the criteria set forth in the examination and indicated in each area identified as weak on the examination grade report wherein he felt he had achieved the desired goal and standard, Mr. Burke, a registered architect and a member of the Florida Board of Architecture, identified several material areas wherein the Petitioner failed to observe program requirements. In the Site Planning and Site Design area, Petitioner has not shown any details as to how handicapped individuals would get across the median in the parking area in that there is no showing of a ramp from the pavement over the curb and across the median, nor is there any showing of lighting over the curbs for the handicapped. Further, on the issue of service area location, as drawn by Petitioner, this layout would require all service vehicles to pass in front of the airport through passenger traffic to get to the service cut for the service drive, which, in itself, is located too close to the baggage handling area. In addition, the site aesthetics were deficient in completeness and clarity in that landscaping was not shown, nor was appropriate consideration given to water flow and drainage. Additional deficiencies were demonstrated in the areas of building planning and design. The functional relationships of programmed areas were basically accomplished, but major problems exist in the general lobby area. While the test problem calls for the display area to be in the general lobby area, in Petitioner's solution, they are away from the ticket area and somewhat hidden. Those facilities which need exposure do not get it. Pedestrian circulation between the baggage claim area and the lobby exits is obstructed by the location of the car rental booths. In addition, traveling from the deplaning area on the second floor to the baggage claim area on the ground floor is made too difficult. The solution's conformity to barrier-free requirements is weak. There is little or insufficient protection from the elements at the entrances and exits. The solution's requirement for 74-foot trusses in the terminal creates excessive wasted volume in the attic area, and the overall form is awkward. In addition, one page of the problem is not completed, and emergency exits are not shown as required. In the section involving technical aspects of the plan, the first two sub-areas were marked weak primarily because of the incompleteness of the technical plan for the foundation. Further, only a very few technical notes appear on the solution, providing insufficient information, and the use of wood for a public building is dangerous. Petitioner disagrees with his grade and presented evidence to show that his failure was a marginal one. He feels he has rebutted approximately 75 percent of the failing items and passed the written part of the examination (Part B) on the first attempt. He has been involved in residential design for twelve years and has considerable experience. He feels the comment on the handicap ramps is valid, but that is only one part of the problem. There is sufficient other provision made for the handicapped in his solution. The lobby displays would have the least likelihood of being seen if placed in the ticket area as suggested. He opines that the covered walkways over the two major entrances are sufficient, and it would be superfluous to have covers over every door. Repeated rebuttal, such as those items listed, display Petitioner's difference of opinion with the grade assigned his problem, but not that his examination was graded in an arbitrary or capricious way or in a manner different than that utilized in grading the examination of every candidate taking the same examination throughout the United States. Also, his excuse for incompleteness that he only had twelve hours in which to complete the problem is invalid. The same time was allotted all candidates, including those who passed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED: That a final order be entered finding that Petitioner has failed to achieve a passing score on the June 1982 architecture examination and upholding the grade awarded to Petitioner on that examination. RECOMMENDED this 3rd day of January, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 1983. COPIES FURNISHED: John J. Rimes, III, Esquire Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32301 Mr. William Everett Warriner 305 North East Fifth Avenue Gainesville, Florida 32601 Mr. Herbert Coons, Jr. Executive Director Board of Architecture Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
