Findings Of Fact Richard Berry, an applicant for licensure as a landscape architect, was administered the Landscape Architecture License Examination in June, 1987. This exam is a standardized national test which is prepared by the Council Of Landscape Architectural Registration Boards and administered through the Florida Department of Professional Regulation. Part of the examination requires the implementation of design knowledge through practical application. Mr. Berry's score on the design implementation portion of the exam was not sufficient to constitute a passing score. A weighted score of 75 on each portion is required to pass the examination. Mr. Berry passed all other portions of the examination. Upon initially receiving the failing score, Mr. Berry requested an informal review of the grading, which resulted in an upward adjustment of his score. However the score was still insufficient to raise the score to a passing level. The remaining disagreement centered on five items in the practical examination. The items were related to architectural drawings submitted by the Petitioner as required by question four of the design implementation portion of the exam. The items were as follows: 4b(2) drawing of wood deck attachment detail to wall 4b(4) drawing of concrete sidewalk grade wall detail 4b(5) drawing of metal fence detail 4b(6) qualities/quantities of materials listed 4c(2,3) drawing of deck detail At the hearing, Mr. Berry discussed the relevant exam questions and clearly articulated why he believed his responses were entitled to credit in addition to what had originally been given by the examination graders. The Department's expert witness, Mr. Buchannan, indicated that he had rescored Mr. Berry's exam responses in accordance with the "Examination Evaluation Guide" issued by the Council of Landscape Architectural Examination Boards. Mr. Buchannan testified that one point of additional credit should have been given for Mr. Berry's response on the item 4b(2) and one point of additional credit should be given for the response on item 4b(6) of the design implementation portion of the exam. No additional points were to be credited to the responses on the three remaining items. Juan Trujillo, examination development specialist for the Department of Professional Regulation testified as to the effect of the additional points. According to his testimony, the additional credit would provide Mr. Berry with, a raw score of 71.5, which equates to a weighted score of 74.5. The weighted score is rounded up by the Department to a grade of 75.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered by the Department of Professional Regulation, Board of Landscape Architecture, granting to Petitioner, if otherwise qualified, licensure as a landscape architect. DONE and ORDERED this 21st day of November, 1988, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1376 The proposed findings of fact submitted by the Respondent are accepted as modified in the Recommended Older. COPIES FURNISHED: Richard Berry, pro se 6588 Southeast 78th Avenue Keystone Heights, Florida 32656 William Leffler, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Pat Ard, Executive Director Department of Professional Regulation Board of Landscape Architects 130 North Monroe Street Tallahassee, Florida 32399-0750 Lawrence A. Gonzalez, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Bruce D. Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue is whether Petitioner’s performance under its lawn care service contract with the Department of Management Services was deficient, and, if so, whether the amounts deducted by the Department from the monthly payments made to Petitioner under the contract were reasonable and appropriate.
Findings Of Fact Petitioner provides lawn care services to residential and commercial properties in the central Florida area. Andre Smith is Petitioner’s owner and president. In November 2004, the Department entered into a contract with Petitioner for lawn care services at nine Department buildings. The contract was awarded to Petitioner through a competitive procurement process in which Petitioner was the low bidder. The contract number was ITN No. 26-991- 490-Z. Petitioner was to be paid a total of $7,384.92 per month under the contract. Each of the nine buildings was apportioned a specific amount of the total price in the contract. The scope of work under the contract generally included lawn care services, open field mowing, and irrigation system maintenance. The lawn care services required under the contract included mowing, edging, weed control, fertilizing, watering, shrub and tree pruning, mulching, and clean-up. The contract specified the frequency that the services were to be performed. Mowing was to be done weekly between April and November, and every two weeks between December and March; hedges and shrubs were to be trimmed at least monthly unless more frequent trimming was required for aesthetic reasons; and mulching was to be done in March and September. The contract required Petitioner to take soil samples at the beginning of the contract and annually thereafter. The results of the soil samples were to be used to determine whether Petitioner needed to apply iron, lime, or other minerals to the lawns. The contract required Petitioner to inspect each building’s irrigation system at the beginning of the contract, and required Petitioner to provide a report to the building manager regarding any repair work needed on the system. Petitioner was also required to check the irrigation system on every visit to ensure that it was operating properly. The contract required Petitioner to apply pre-emergent weed control and fertilizer. The weed control was to be applied in the spring and the fall, and the fertilizer was to be applied three times during the year on an agreed upon schedule. The mulching required by the contract was to be done in March and September. The mulch was to be maintained at a depth of four inches throughout the year. The contract required Petitioner to use cypress mulch. The day-to-day operation of the buildings subject to the contract was the responsibility of on-site building managers, not the Department staff in Tallahassee. The building managers were responsible for the direct oversight of Petitioner’s work under the contract, and they were also responsible for reviewing and evaluating Petitioner’s performance. Petitioner began providing services under the contract in December 2004. Petitioner received full payment from the Department for the services that it provided from December 2004 through March 2005, even though several of the building managers were not satisfied with Petitioner’s performance under the contract during that period. Several of the building managers spoke with Mr. Smith regarding their concerns with Petitioner’s performance under the contract. They also documented Petitioner’s performance deficiencies on the monthly summary report forms that the contract required Petitioner to submit in order to obtain payment. Starting in April 2005, the building managers were required to fill out evaluation forms in addition to the monthly summary report forms. The impetus for the creation and use of the evaluation forms was Petitioner’s continuing unsatisfactory performance under the contract. The building managers used the evaluation forms to rate Petitioner’s performance as “good,” “fair,” or “poor” on the 20 categories of service that Petitioner was required to perform under the contract. Each service was assigned an equal weight -- e.g., one twentieth or five percent of the contract -- and if all 20 services were not applicable to a particular building, the weight assigned to each service was adjusted accordingly. The evaluation form was developed by Kris Parks, who was the contract administrator for Petitioner’s contract. Ms. Parks developed the form on her own. She did not get the input of the building managers in developing the form, and Mr. Smith was not consulted regarding the development of the form. The evaluation forms were used by Ms. Parks in conjunction with the monthly summary report forms in order to reduce the payments made to Petitioner under the contract. Each service for which Petitioner was given a “poor” rating by a building manager resulted in a five percent deduction in the amount paid to Petitioner. Typically, a “poor” rating reflected work that was not performed at all by Petitioner, rather than work that was performed unsatisfactorily. In some situations, a smaller deduction was made if the comments on the evaluation form or the monthly summary report form reflected partial performance despite the “poor” rating. For example, if Petitioner received a “poor” rating for mowing, but the comments reflected that Petitioner provided services twice during the month rather than the required four times, the deduction was 2.5 percent rather than five percent. The reduction of payments under the contract for unsatisfactory performance or unperformed work is specifically authorized by Section 3.13 of the contract. Section 3.13 of the contract states that the monthly summary report form “will be used by [the building managers] to track performance of services, in order to determine a proportional deduction in payment for services that are not performed as agreed” in the contract. It does not mention any other form. The contract does not define “proportional deduction” and it does not include the methodology to be used in calculating the deduction. The contract is silent on those issues. Petitioner’s contract with the Department was amended in May 2005 to reduce the number of buildings that Petitioner served from nine to three. The three remaining buildings were the ones closest to Petitioner’s business location in Lakeland, i.e., the Hargrett and Trammel Buildings in Tampa and the Peterson Building in Lakeland. The reduction in the scope of the contract was the result of Petitioner’s continuing unsatisfactory performance under the contract, and it reflected the Department’s well- founded view that Petitioner was not able to handle all nine buildings. The Department staff was trying to help Mr. Smith by allowing Petitioner to retain a portion of the contract rather than canceling the contract altogether based upon Petitioner’s poor performance. The invoices submitted by Petitioner for April 2005 through July 2005 were as follows: $7,384.92 (April); $7,384.92 (May); $1,938.64 (June); and $1,938.64 (July). The April and May invoices were based upon the nine buildings served by Petitioner in those months. The June and July invoices were based upon the three buildings served by Petitioner in those months. The Department did not pay the invoices for April 2005 through July 2005 in full. It paid Petitioner $2,451.782 for April (33.2 percent of the invoice), $835.82 for May (11.6 percent), $453.393 for June (23.4 percent), and $904.66 for July (46.7 percent). The amounts deducted -- $4,933.14 for April; $6,531.10 for May; $1,485.25 for June; and $1,033.98 for July -- were based upon the Department’s determination that Petitioner failed to perform certain work under the contract. The amounts deducted were calculated by Ms. Parks using the information provided to her by the building managers on the evaluation forms, as described above. The letters by which the Department informed Petitioner of the payment reductions advised Petitioner that it “may have the right to an administrative hearing regarding this matter, pursuant to Sections 120.569 and 120.57(1), Florida Statutes.” The letters explained what Petitioner was required to do to request a hearing and advised Petitioner that the "[f]ailure to timely request a hearing will be deemed a waiver of [the] right to a hearing." Petitioner timely filed letters challenging the deductions for April, June, and July 2005. The total deductions for those months were $7,452.37. Petitioner did not file anything challenging the deduction for May 2005. Therefore, the $6,531.10 deduction for that month is not at issue in this proceeding. Petitioner is not entitled to the full amount billed to the Department for April, June, and July 2005 because all of the services required under the contract were not performed during those months. Mr. Smith conceded this point in his testimony at the final hearing.4 Mr. Smith contended at the hearing that the amounts deducted by the Department were not reasonable in light of the services that Petitioner did provide. However, Mr. Smith did not identify what he would consider to be a reasonable deduction for the work that Petitioner admittedly did not perform. Petitioner routinely failed to provide mowing services at each of the buildings at the intervals required under the contract. For example, Petitioner only mowed one time during the month of June 2005 at the Hargrett and Trammel Buildings, rather than the four times required under the contract. Petitioner did not put down mulch at any of the buildings in March 2005, as required by the contract. When the building managers asked Mr. Smith about the mulch, he told them that he would get to it. Mr. Smith testified that he was told by the Department staff in Tallahassee that the mulch could be put down in any month so long as it was done twice a year. That uncorroborated, self-serving testimony was not persuasive. Petitioner put down mulch at some, but not all of the buildings in April and May 2005. The mulch that Petitioner put down did not cover all of the areas requiring mulch and it was not put down at the required four-inch depth. At the Trammel Building, for example, the mulch put down by Petitioner was less than half of that required by the contract. No mulch was ever put down at the Hurston Building in Orlando or the Grizzle Building in Largo. Petitioner’s performance was often deficient in regards to trimming and clean-up of debris. For example, on one occasion at the Trammel Building, Petitioner left more than 60 bags of leaves in and around the building’s dumpster; at the Hargrett building, there were overhanging tree limbs that went untrimmed for an extended period; and Petitioner routinely failed to do trimming at the Grizzle Building, although he did a good job picking up debris at that building. The services provided by Petitioner at the Trammel Building got so bad that the building manager had to hire another company at a cost of approximately $1,800 to clean up the site so that it would be presentable for an event in the vicinity of the building that was attended by a U.S. Senator and other dignitaries. The building managers were never given the results of the soil samples that Petitioner was required to take at the beginning of the contract even though they repeatedly requested that information. When Mr. Smith was asked about the soil samples by the building managers, he told them that he would get them done. Mr. Smith claimed at the hearing that he sent the results of the soil samples to the Department staff in Tallahassee, although he could not recall whom specifically he sent the results to, and he offered no documentation to corroborate his testimony on this issue. Petitioner’s testimony regarding the soil samples was not persuasive. The Department’s witnesses credibly testified that they never received the results of the soil samples from Petitioner. Indeed, the evidence was not persuasive that Petitioner ever took the soil samples required by the contract. The print-outs presented at the final hearing, Exhibit DMS-11, do not have any identifying information that would corroborate Mr. Smith’s testimony that the samples described in the print- outs were from the buildings that were the subject of the contract.5 Moreover, the print-outs are dated March 8, 2005, which is more than four months after the samples were supposed to have been taken by Petitioner, and several of the soil samples had pH levels outside of the range set forth in the contract. Mr. Smith testified that Petitioner applied fertilizer and pre-emergent weed control at each of the buildings, as required by the contract. That uncorroborated, self-serving testimony was not persuasive. The more persuasive evidence establishes that Petitioner did not apply fertilizer or pre-emergent weed control. On this issue, the building managers credibly testified that they were never advised by Mr. Smith that the fertilizer or pre-emergent weed control was being applied, even though those services were to supposed be performed pursuant to a schedule agreed upon with the building managers; the building managers credibly testified that they did not observe any signs that fertilizer had been applied, such as the greening of the grass; and fertilizer could not have been applied at the Hurston Building without killing all of the grass because the fertilizer needs to be watered into the lawn, and the sprinkler system at the building was not working at the time. Petitioner failed to perform the required inspection of the irrigation system at several of the buildings, including the Hurston Building, at the beginning of the contract in order to determine whether any repairs needed to be done. The system at the Hurston Building did not work for an extended period of time, which caused large sections of grass around the building to die from a lack of water. The performance deficiencies described above were cited on the monthly summary report forms and the evaluation forms completed by the building managers, which in turn were used by Ms. Parks to calculate the amount deducted from the monthly payments made to Petitioner under the contract. Petitioner was responsible for the costs of the mulch, fertilizer, and pre-emergent weed control required under the contract. The money that Petitioner “saved” by not providing those services likely exceeds the amounts deducted by the Department pursuant to Section 3.13 of the contract. For example, the mulch purchased by Petitioner for the Trammell Building cost approximately $2,250, and that was only half of the mulch needed for that building alone. Petitioner is no longer providing lawn care services to the Department under the contract. The contract was revoked based upon Petitioner’s unsatisfactory performance. The revocation of the contract, which occurred at some point prior to August 2005, is not at issue in this proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services issue a final order rejecting Petitioner’s challenge to the payment reductions made by the Department for the months of April, June, and July 2005. DONE AND ENTERED this 3rd day of November, 2006, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 3rd of November, 2006.
The Issue Whether the Petitioner is entitled to a passing grade on the "Integration of Technical and Design" portion of the licensure examination administered in June of 1997.
Findings Of Fact In July 1997, Petitioner sat for Section 5 of the Landscape Architect Registration Examination that had been prepared by the Council of Landscape Architectural Registration Boards (CARLB). CARLB is a national organization that prepares licensure examinations for several states, including Florida. Section 5, styled Integration of Technical and Design Requirements, contains 5 vignette problems, each of equal weight. Petitioner received a passing grade for problems 1 and 3. When her responses were initially scored, she did not receive a passing grade for problems 2, 4, and 5. Her responses were re- scored at her request. She did not receive a passing score for these three problems following the re-scoring of her responses. For Petitioner to have passed Section 5, she would have had to have a passing score on three of the problems. 1/ The candidates were required to prepare design development details for a terrace area. The two problems at issue in this proceeding pertained to the construction of a free- standing wall (vignette problem 2) and the construction of a pool (vignette problem 4). The candidates were to assume that the soils were stable and that the frost depth was 24 inches. The scoring for the five problems required the grader to first determine whether the design by the candidate met the criteria to be scored. Critical issues were identified by the committee that prepared the examination and were part of the scoring criteria used by the graders of the examination. If it did not meet that criteria, the candidate received a grade of "s," which is a failing grade. If it met the criteria to be scored, the grader next determined whether the candidate missed any critical items. If there were missed critical items, the candidate received a score of "c," which is a failing grade. If there were no critical items missed, the grader continued grading the design until a final grade was determined. When Petitioner's responses to problems 2 and 4 were initially scored, she received a grade of "c" for both problems. When her responses to the two problems were re-scored, she received a grade of "c" for problem 2 and a grade of "s" for problem 4. For the purposes of scoring the examination, the term "Critical Failure," for which the candidate would receive a grade of "c," is defined as: solution indicates a life/safety error or fails to demonstrate the primary knowledge being tested on the vignette problem. For the purposes of scoring the examination, the term "unscoreable" [sic] for which the candidate would receive a grade of "s" is defined as: the solution is blank or fails to follow basic problem requirements given in the vignette problem statement. Problem 2 required the candidates to draw a cross- section of a free standing wall. The candidates were instructed to label materials, fasteners, finishes, and/or joining materials. Among the critical issues identified for problem 2 are the following, which Respondent asserts that Respondent failed to meet: 2/ Stone veneer is not tied to the wall. Fails to show compacted subbase and/or subgrade (i.e., compacted and undisturbed subgrade or compacted granular base shown). There was a dispute between Petitioner's expert witnesses and Respondent's expert witnesses as to whether Petitioner's response to vignette problem 2 should have received a passing grade. Respondent's expert was of the opinion that masonry ties should have been used to tie the stone veneer to the wall, and that Petitioner's failure to do so merits a failing grade. Petitioner's experts were of the opinion that Petitioner adequately tied the stone veneer to the wall by using mortar. The conflict in the evidence is resolved by finding that while tying the stone veneer to the wall with masonry ties is the preferred method, using only mortar is an acceptable method. Using only mortar does not meet the definition of a critical failure issue. Respondent's expert also was of the opinion that Petitioner's failure to show that the area under the footing of the wall was compacted subgrade is a critical fail issue. Petitioner showed that certain areas above the footing were to be compacted subgrade, but she clearly did not show the area under the footing to be compacted subgrade. Respondent established that this is a critical failure issue because the failure to erect the wall on compacted subgrade could impair the structural integrity of the wall. This failure justified the failing grade, given Petitioner's response to problem 2. Vignette problem 4 required Petitioner to show the cross-section of a poured-in-place concrete pool. Among other instructions, the candidates were told to include a permanent combination drain/overflow structure and to label all critical dimensions. The only critical issue for problem 4 was the following: "Pool does not extend to or below frost depth (from top of water elevation)(dimensioned, labeled or noted)." Initially, Petitioner's response to problem 4 was awarded a score of "c." When it re-scored, the grade was changed from a "c" to an "s." Respondent's expert testified that the design was re- scored as an "s" because of the manner Petitioner's depicted the drain/overflow structure. In her notes, she indicated that the drain/overflow structure was a "2 x 18" high standpipe with dome removable from floor drain." The structure she described was not the structure she drew. As drawn, the drain/overflow structure would not have worked because it could not have been removed from the floor drain. The manner in which she drew the drain/overflow structure established that Petitioner was not entitled to a passing grade for problem 4. Petitioner's design did not place the bottom of the pool at or below the frost depth and she did not dimension, label, or note, the frost depth. Her experts argued that frost depths are not a factor that needs to be considered in Florida and that her failure to address the frost depth issue should not be a critical failure issue. That argument is rejected because Petitioner was not at liberty to ignore the fact that the hypothetical structure was to be built in an area with a frost depth of 24 inches. 3/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order that dismisses Petitioner's challenge to her grades to problems 2 and 4 of the "Integration of Technical and Design" portion of the licensure examination administered in June of 1997. DONE AND ENTERED this 10th day of March, 1999, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of March, 1999.
The Issue The ultimate issue in the instant case is whether Petitioner's challenge to the failing grade he received on the Building Design section of the June, 1989, architecture licensure examination should be sustained.
Findings Of Fact Based upon the record evidence, the Hearing Officer makes the following Findings of Fact: The architecture licensure examination utilized by the Department of Professional Regulation is a national examination prepared by the National Council of Architectural Registration Boards (NCARB). In June, 1989, Petitioner took the Building Design section of this licensure examination, which was the only section of the examination he had not previously passed. A candidate must pass all sections of the examination to qualify for licensure. The Building Design section of the examination is a practical test. Candidates are given a test booklet which contains a description of the environmental and programmatic requirements for a hypothetical building and site and then directs the candidates to "synthesize this information into a coherent, aesthetic concept for the building and site and to graphically convey [their] solution in the required drawings." The required drawings must be completed within twelve hours. Because of its length, this portion of the examination can be physically demanding. Moreover it is typically difficult to pass. Normally only 35-40% of the candidates receive a passing grade on this section of the examination. 1/ The candidates' solutions are graded by jurors who are selected in accordance with guidelines developed by NCARB. Jurors must have a minimum of five years experience as a licensed architect. Jurors gather at regional sites throughout the country where they grade the solutions over a two and a half to three day period. Each juror is furnished with a NCARB Jurors' Manual in advance of the grading session. The manual provides detailed information regarding the standards and criteria the jurors are expected to apply in evaluating the drawings submitted by the candidates. The jurors also receive training and instruction regarding the grading process at the grading site before they begin grading the candidates' solutions. The training and instruction are provided by master jurors, who have considerable experience in grading this portion of the examination. Each master juror oversees approximately eight to ten jurors. A master juror will not permit a juror under his or her supervision to commence grading until he or she is satisfied that the juror understands the grading process and will reasonably apply the requisite standards and criteria in evaluating the candidates' drawings. The master juror's supervisory responsibilities with respect to a juror do not end when the decision is made to allow the juror to begin grading. The master juror regularly monitors the grades given by the juror. If the juror's grades are on the average markedly higher or lower than the grades given by the other jurors, the juror will be counseled by the master juror. Jurors are reminded throughout the grading session that, in grading the candidates' work, they should take into consideration that the candidates merely need to demonstrate that they can perform "at minimum level capability" and that the candidates had only 12 hours to prepare their drawings. Test solutions are randomly distributed to the jurors for grading. The jurors are unaware of the identities of the candidates whose drawings they are evaluating. Generally, jurors spend approximately three to five minutes reviewing a candidate's drawings before deciding on the grade to give the candidate. This is a sufficient amount of time to evaluate the candidate's work. After coming to a decision on the matter, the grade is recorded on a score sheet and entered in a computer. The juror must assign one of the following five numeric grades to each set of drawings he or she reviews: 0 (when the candidate submits blank pieces of paper); 1 (very poor); 2 (unacceptable); 3 (acceptable); and 4 (very good). The latter two grades are passing grades. The remaining grades are failing grades. The grade given is intended to reflect the juror's assessment of the candidate's entire work product on this portion of the examination. In addition to assigning one of the foregoing numeric grades, the juror is required to check the appropriate box on the score sheet to indicate "up to three areas of weakness" if he or she has assigned a failing grade. Each candidate's drawings are graded by a least two different jurors,. They assign grades without knowing what grade the other juror has given. If the candidate receives a grade of 3 or 4 from both jurors, he or she passes. If the candidate receives a grade of 0 or 1 from both jurors, he or she fails. If the candidate receives any other combination of grades, a third juror will review and grade the candidate's drawings. If the third juror assigns a grade of 3 or 4 and one of the other juror's had also assigned a grade of 3 or 4, the candidate passes. If the third juror assigns a grade of 0, 1 or 2 and one of the other jurors had also assigned a grade of 0, 1 or 2, the candidate fails, unless his or her three grades are 1/2/3, 2/3/2, 2/4/2 or 2/2/3. Under such circumstances, the candidate's work product will be reviewed and graded by a master juror. If the master juror assigns a grade of 3 or 4, the candidate passes. If the master juror assigns a grade of 0, 1 or 2, the candidate fails. The Building Design section of the June, 1989, examination involved the design of a two-story religious life center on a college campus located in Kalamazoo, Michigan. The test booklet that Petitioner and the other candidates received upon their arrival at the testing location described in a clear and concise manner the environmental and programmatic requirements of the project, as well as the type of drawings that had to be produced, to wit: an upper level floor plan/site, lower level floor plan, east elevation and building section. In addition, the booklet gave notice that these drawings would be evaluated in accordance with the following grading criteria: Your solution will be graded based on the following categories. To pass this examination, a solution must be at least minimally acceptable in every major category. Program Requirements Development of All Programmed Spaces Conformance to Square Footage Requirements Compliance with Required Spatial Relationships Design Logic Circulation Spatial Relationships/Proportions/ Adjacencies Compatibility to Existing Context Code Compliance Fire Wall Separations Means of Egress Handicapped Accessibility Requirements Technical Aspects Material Selection and Wall, Floor and Roof Assemblies Structural Systems, their Appropriateness and Integration Mechanical Systems Completeness and clarity of Presentation, Adherence to Test Instructions, or Required Drawing(s) Missing NOTE: Solutions which have a required drawing missing, are unintelligible, or are drawn with the use of color, press- on letters, or transfer drawings, will automatically receive a grade of FAIL. Petitioner's drawings were reviewed and graded by three jurors and a master juror. He received grades of 2, 3 and 2 from the jurors and a grade of 2 from the master juror. The score sheets submitted by the master juror and the jurors who gave Petitioner a grade of 2 reflect the following: one found Petitioner's drawings to be weak in the areas of design logic-circulation and technical aspects-structural systems 2/; another deemed the drawings to be deficient in the areas of design logic- circulation and code compliance-means of egress; and the third was of the view that the drawings were unacceptable in the area of code compliance-means of egress. Petitioner's drawings, in fact, were deficient in all of these areas 3/ and he therefore deserved to receive a failing grade on the Building Design section of the June, 1989, licensure examination. 4/ CONCLUSION$ OF LAW Any person seeking a license to practice architecture in the State of Florida must apply to the Department of Professional Regulation to take a licensure examination if he or she is not qualified for licensure by endorsement. Section 481.209(1), Fla. Stat. The licensure examinations given by the Department must "adequately and reliably measure an applicant's ability to practice [architecture.]" Section 455.217(a)(a), Fla. Stat. The Department must "use professional testing services to prepare, administer, grade and evaluate the examinations, when such services are available and approved by the [B]oard of Architecture." Section 455.217(1)(a), Fla. Stat. The National Council of Architectural Registration Boards (NCARB) offers professional testing services that have been approved by the Board of Architecture by rule. Fla. Admin. Code Rule 21B-14.001. In accordance with the mandate of Section 455.217(1)(a), Florida Statutes, the Department utilizes these services in testing applicants seeking to become licensed architects. NCARB's "testing format . . . recognizes that some subjectivity is inherently part of the examination [grading process]. But the testing system seeks to minimize professional bias of individual graders by a training and testing format which [is designed to produce] fairly uniform results." Harac v. Department of Professional Regulation, Board of Architecture, 484 So.2d 1333, 1337 (Fla. 3d DCA 1986). An applicant who fails to attain a passing grade on the licensure examination is entitled to an administrative hearing on the matter conducted pursuant to Chapter 120, Florida Statutes. Sections 455.229 and 455.230, Fla. Stat.; Fla. Admin. Code Rule 21-11.012. The burden is on the applicant to establish by a preponderance of the evidence that his examination was erroneously graded. See Harac v. Department of Professional Regulation, Board of Architecture, 484 So.2d 1333, 1338 (Fla. 3d DCA 1986)("Ordinarily one who fails a licensure examination would shoulder a heavy burden in proving that a subjective evaluation by an expert is arbitrary"); Florida Department of Health and Rehabilitative Services v. Career Service Commission 289 So.2d 412, 414 (Fla. 4th DCA 1974)("the burden of proof is on the party asserting the affirmative on an issue before an administrative tribunal"'). The proof Petitioner submitted at hearing was insufficient to satisfy this burden of proof. Indeed, the preponderance of the record evidence establishes that the failing grade Petitioner received on the Building Design section of the June, 1989, licensure examination was warranted. In addition to alleging that he should have been given a passing grade on this portion of the examination, Petitioner also advanced the following claims in his petition for an administrative hearing filed in the instant case: 1) the exam was graded improperly insufficient time was allotted for the proper grading of the exam by jurors. a subjective process is used to grade the exam. see additional specific items below. * * * the grading process is unfair confidentiality of previous jurors grades are not kept from subsequent jurors. confidentiality of test taker's probable nationality, etc. is not maintained. the ETS was contracted by the State of Florida without proper bidding procedures. 5/ non-subjective grading is a prerequisite for fair grading and was not provided. The Dept. of Professional Regulation has allowed a campaign by private interests to influence the grading and licensure of architect candidates. The American Institute of Architects has acted on a campaign to increase architect's compensation by limiting the number of professionals licensed by the Department of Professional Regulation. This influenced the grading of the exam and licensure of architects in Florida. No non-A1A member architects are state board members and A1A membership is a de facto requirement. The attempts to limit the number of architects to be licensed comes at a time when large numbers of women and minority applicants are applying for licensure. d. Mr. Garcia is a minority applicant and was substantially affected. Petitioner's claim that "a subjective process is used to grade the exam" finds support in the record. That subjectivity plays some role in the grading process, however, is not, standing alone, a basis upon which to overturn the results of a licensure examination. To prevail, an unsuccessful applicant must also show that those who subjectively evaluated his or her examination acted arbitrarily or without reason or logic in giving him or her a failing grade. See Harac v. Department of Professional Regulation, Board Qf Architecture, 484 So.2d 1333, 1337 (Fla. 3d DCA 1986); State v. Board of Electrical Examiners for Jacksonville Beach, 101 So.2d 583, 586 (Fla. 1st DCA 1958). No such showing was made in the instant case. The remaining allegations made in paragraphs 1, 3 and 4 of Petitioner's petition are not supported by any persuasive competent substantial evidence. Accordingly, these allegations are also without merit.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Architecture reject Petitioner's challenge to the failing grade he received on the Building Design section of the June, 1989, architecture licensure examination. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th day of April, 1990. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 1990.
Findings Of Fact On March 9, 1973 Peterson, an architect registered in Florida, submitted a proposal "for preparation of design and construction drawings" for remodeling an existing residence to a new law office (Exhibit P-5). This was assigned on March 13, 1978 by attorney Anderson, who also remitted the required $200 retainer fee. Pertinent to this case, the contract provided for services to be rendered as: "Contract documents for permits and construction to include architectural plans (site floor plan, elevations and sections) and engineered structural and electrical drawings; "fee was $1,000 payable $200 on signing and $800 upon completed contract documents for permits." Any other services were at $20 per hour, including design changes after approval of preliminary drawings. The plans Peterson prepared showed the removal of a load bearing wall, without comment or provision for structural additions required by the demolition of the wall. Although the plans were not sealed, Anderson paid the $800 balance and bids were requested. The one bid (Exhibit R-4) was considerably more than budgeted, therefore the project was delayed. After a time, Anderson got interested in the project again but Peterson was unavailable so another architect was used and the project was completed. Thereafter, Anderson's requested reimbursement from Peterson was refused and this complaint was filed. Two registered Florida architects testified as experts for the Petitioner. Peterson's plans did not meet minimum architectural standards, particularly as to omission of substitute structural members for the removal of the load bearing wall. Although, structural changes could have been added by addendum, plans must be complete prior to obtaining permits and bids, and the acceptance of the full amount of the fee. In mitigation, Respondent agreed that he misinterpreted Anderson's understanding and desires but thought the standard procedure was followed; he indicated that this is the first time he has been in this type of situation. More particularly, Peterson intended to exercise his right to prepare an addendum that would have provided an appropriate structural substitution for the load bearing wall, after the ceiling was opened up; he considered the original plans for the wall as schematic only. He assumed the project was not going forward and the bidding process was merely to get prices.
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 Petitioner is an unsuccessful candidate for the General Contractor Examination given in February, 1990, (the "examination"). Petitioner passed part three but failed parts one and two. Petitioner subsequently passed part one in June, 1990. Petitioner received a score of 69 percent on part two of the examination and needs only one point to pass part two and the entire examination. 1/ Question 37 is worth one point. Respondent gave credit for answer "(D) 10" in response to question 37. Petitioner selected answer "(A) 0" in response to question 37. Question 37 requires a candidate to apply Section 713.12, Florida Statutes, to the facts provided in the stem to question 37. Section 713.12, in relevant part, gives a spouse 10 days after learning of a contract to object to the signing of a contract by his or her spouse. Question 37 requires a candidate to determine how many days a wife has to object to a contract entered into by a contractor and both spouses but signed only by her husband with her knowledge. Question 37 is not ambiguous. There is only one correct response to the question challenged by Petitioner. The correct response to the question is answer "(D) 10." Petitioner did not choose the correct answer for question 37. The wife is not deemed to waive any objection she has if she does not make it at the time of the signing. The time that the wife learned of the contract and its signing is clear and unambiguous from the facts in the stem of the question. The contract was entered into by both the husband and wife and was signed by the husband with the wife's knowledge. The ordinary and plain meaning of the term "with" connotes "at the same time as." The only type of property that is reasonably contemplated in question 37 is real property. Of the 649 candidates who took the examination, 81 percent selected answer "(D) 10." Of the candidates who scored in the upper 27 percent on the examination, 92 percent selected answer "(D) 10." Only two percent of the candidates selected answer "(A) 0."
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 question 37. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 8th day of April 1991. DANIEL MANRY Hearing Officer Division of Administration 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 8th day of April 1991.
