Findings Of Fact At all times pertinent to the issues herein, the Respondent, Raymond E. Hirst, Jr., professional engineer, was licensed as such by the State of Florida under license number PE 0017307. Prior to March 22, 1983, the Respondent, for Mech-Mar Engineering Company, Inc., designed a storage bay and mini- warehouse project to be built by Ruth Stein Construction for William M. Kwasniki, to be located on South Babcock Street in Palm Bay, Florida. Petitioner designed the facility and signed the plans for construction on March 22, 1983. A note clearly marked on the sheet index on the upper right hand corner of the first page of the plan set reflects, "The engineer's services do not include supervision of the construction of this project." The plans consist of three sheets of drawings, each of which is sealed and signed by the Respondent. The first sheet reflects the foundation plan. The second shows the electrical riser and firewall detail, and the third reflects the elevations. On or about April 3, 1983, the contractor, Ruth Stein, submitted these plans to the City of Palm Bay building department. The plans were approved for construction by the office of the chief building official, Paul Olsen, and formed the basis for the issuance of the construction permit. Neither the engineer's specifications nor calculations were submitted and filed with the plans. However, calculations were not required by the City of Palm Bay at that time. Two amendments to the plans were filed by the Respondent on May 31, and August 10, 1983. No revised drawings were submitted, however. The drawings that were submitted by Ms. Stein, but drawn by Respondent, were used to insure that the plans conformed to standard building codes, zoning codes, etc., but were not reviewed by the city for compliance with engineering standards and no engineering analysis was done by the city on these or any other plans at that time. The need to do so was apparently recognized later, however, as such analyses are now done on a routine basis. The plans were also to be used by the city's inspection staff to compare work being done by the contractor with the plans to insure that the work conforms to them. During construction, the building being erected according to Respondent's plans, a concrete block structure, collapsed. This collapse occurred sometime prior to May 20, 1983. After the structure collapsed, the city building office again approved the plans drawn by Respondent for reconstruction. The contractor was told to clean up the site and was then allowed to rebuild. Not only the original plans but the amendments referred to above, including that dated August 10, 1983, called for partitions within the building. After rebuilding, the structure was inspected by the city and a certificate of occupancy was issued in August, 1983. No complaints have been filed regarding this construction since that time. After the collapse, an inspection of the collapse site revealed that in some areas on the west part of the structure, cells of the concrete blocks being used to form the walls had not been filled with concrete as was required by the design submitted by Respondent. In the opinion of Mr. Olsen, this defect was a fault not of the Respondent but of the contractor. No determination was made by the city as to: whether the block walls as designed by Respondent met Standard Building Code (SBC) requirements; whether the walls were supported laterally as required; whether anchorage of the roof trusses to the walls was accomplished; whether Respondent properly, or at all, designed a roof diaphragm for this project; whether the walls were adequate to meet the wind load requirements (the SBC suggests that maximum wind velocity standard is 90 mph.); whether the lentils were adequate; and whether the truss anchorage limits were satisfactory. (According to Mr. Olsen, this decision is left up to the engineer who designs the structure.) The city found, however, that a part of the reason for the collapse of this structure was that the trusses for the roof were set too soon, were not adequately braced, contained questionable materials, and wore questionably fabricated. Though the city was not critical in its analysis of Respondent's performance, the experts retained by Petitioner to evaluate his drawings were. Mr. James O. Power, who has been a registered structural engineer since 1947 did not examine the building site but is aware of the project in question. He reviewed the drawings prepared by Respondent, photos taken of the site, the investigative report, letters and correspondence from Respondent with calculations contained therein, and the Respondent's amendments to the original drawings. On the basis of this evidence, he formed an opinion as to Respondent's performance as an engineer on this project and prepared several letters on the subject dated July 6 and October 21, 1983, and January 30 and September 7, 1984, all of which constitute his opinion as to Respondent's performance. In substance he concluded that Respondent's engineering performance on this project was unsatisfactory showing basic negligence and lack of due care as well as a lack of understanding of the basic engineering requirements for the job. In his opinion, overall, the drawings lack sufficient detail. For example, they, (a) show no interior partitions (partitions were defined in an amendment to the drawing filed after the collapse); (b) show that while the southern wall has few openings, the north wall has many, (this is significant in that because of the lack of partitions, the walls must resist the winds playing upon them as vertical cantilevers); (c) show that the number 5 vertical bars in the fill cells are 12 feet apart, (to serve as reinforced masonry, they should be 4 but no more than 8 feet apart depending on the circumstances); (d) reflect a ceiling height of 14 feet whereas later drawings show a difference in elevation; (e) show that the tie beam is to be constituted of inverted masonry U-beam 16 inches deep filled with concrete and reinforcing steel without providing for any obvious way to insert the concrete within the beam; (f) failed to show with detail the strap makeup or method of connection for the hurricane straps to be used to hold down the roof trusses to the walls, (the drawings show that the strap is to loop over the truss and if the straps do not do so, the connection is weak); (g) reflect that the door height at the openings on the north and south side doors are different than the tie beam height but there is no showing of how the weight of the roof is to be distributed over the door head only 8 inches below the tie-beam (this could contribute to the collapse of the building); and (h) failed to show drawings of trusses by the Respondent. In this regard, the truss company's drawings and specifications are insufficient. Since the Respondent's drawings do not define with particularity how the trusses are to be constructed, the truss fabricator must make assumptions as to the stress and load to be applied. With regard to the pre-engineered and pre-manufactured roof trusses, Mr. Power is of the opinion that the designer, Respondent, should have: (1) stated his criteria for the design of the truss (Respondent did not do this); (2) stated the qualifications of the designer (Respondent did not do this); (3) submitted clear instructions regarding his design (Respondent's are unclear and unsatisfactory). Mr. Power also indicates that in his experience, bracing for the trusses is installed at the building site and that only the basic truss is constructed at the truss company's plant. Respondent, on the other hand, contends that the practice in Brevard County is for the building designer, as here, to give the basic specifications needed for the truss, and thereafter, the truss designer, working for the truss company, designs and builds the complete truss for delivery to the site. If Mr. Power's position is to be believed, personal supervision of the designer would be required at the site once the basic truss was delivered. Here, however, Mr. Power operates out of Miami and Petitioner has failed to show that he is familiar with the trade practice in the area involved in this dispute. Respondent's position is somewhat supported by the fact that his plans contain a disclaimer of supervision and no issue was made that this is a forbidden or unaccepted practice. Consequently, it cannot be said that Respondent's design of the trusses in this case was faulty. Mr. Power also identified several "design deficiencies" in Respondent's work. Among these were that there was no requirement for the use of reinforced masonry which is different from concrete and that Respondent's drawings provided no details or standards for the mortar or grout, the substance used to fill the holes in concrete blocks which should have a minimum slump of 8 inches. (If one tried to fill these cells from the top of a 14 foot wall, it is most likely that the cell, the hole within the blocks, would not be filled.) Further, the formulae used by Respondent in his calculations are for solid materials in the walls -- not for cinder block which was the material called for here. On the basis of the above discrepancies, it appeared to Mr. Power that Respondent did not understand the difference between the requirements for construction with concrete block and those for construction with reinforced masonry. In addition, according to Mr. Power, the reinforcing walls inserted in the design by the Respondent after the collapse of the building are of materials not permitted by the SBC. Also the SBC requires that the ratio of length to width of roof diaphragm should be no more than 4. The purpose of this is to provide support to the top of the wall so as to resist loads placed upon it by the force of wind. Here, Respondent's design has not adequately provided this reinforcement, in Mr. Power's judgment, and the design does not meet the SBC requirement. The SBC also requires designs of buildings to be constructed in the Palm Bay area to be able to withstand 90 mph winds. Mr. Power's calculations based on Respondent's plans and drawings show it is questionable that a building built pursuant to Respondent's plans would sustain 90 mph winds. The fact that the chances are only one in fifty that in any given year winds of this speed would be reached is immaterial. As to the filling of the holes (cells) in the concrete block, Mr. Power contends that it is a good practice to show in the drawing a breakout in the block at the bottom of the wall so that the builder can see that the concrete has in fact gone all the way down to the bottom as it should. Here, however, the building code does not require this to be done. Again, considering the Respondent's use of cement instead of grout to fill the cells, the Respondent followed county practice and the SBC does not specifically require the use of grout. Nonetheless, Mr. Power is of the opinion that even though Respondent's drawings indicated that he would not inspect at the site, it was unreasonable for Respondent to expect the cells to be filled since it is well known that many contractors do not inspect to insure that the cells are filled as called for. Mr. Power is also of the opinion that the lintels as described in one of the amendments to the basic drawings, though permissible for use, are inadequate to handle the indicated roof load and the drawings prepared by Respondent did not show the lintel capacity. Mr. Power contends that the SBC requires drawings to show sufficient detail to indicate the intent of the designer to allow the contractor using the drawings to conform to code standards. Admittedly, this is subjective criteria, not an objective one, as to what constitutes sufficient detail. The amendments added to the original designs helped somewhat to correct the deficiencies, but do not make them adequate. Taken as a whole, the drawings are not adequate, in the opinion of Mr. Power, to comply with the SBC. They are not adequate to pass on the designer's intent to the contractor and they are not adequate to show the designer's understanding of design elements. These errors and deficiencies described above are, in the opinion of Mr. Power, significant and not minor. Based on his analysis of the overall drawings and situation, he concluded that Respondent has not demonstrated his capability to handle this particular task which, in the opinion of Mr. power, is relatively simple. Respondent's drawings and the other documents pertinent to the project in issue here including calculations, correspondence, photos, and the investigative report, were also reviewed by Ernest C. Driver, a Florida licensed consultant engineer operating in Cairo, Georgia. Mr. Driver also reviewed Mr. Power's reports and is in complete agreement with his conclusions. He did some calculations on his own and on the basis of them, formed an opinion of Respondent's performance as an engineer on this project. He found that the reinforcing of the cinder block cells on the walls were too widely spaced at 12 foot centers instead of 4 to 8 foot centers. In addition, he did not agree with the engineering conclusions drawn by the Respondent. The calculations performed by Respondent were, in his opinion, improper and as a result, the design is over-stressed by approximately 215 percent. This came about, apparently, because Respondent designed a wall as though there were no doors in it. In addition, the way the tie beam is designed, it is impossible to get the reinforcing concrete into the "U." Further, the hurricane straps required to affix the roof trusses to the tie beam cannot be attached to the beam itself. Also, the design called for concrete block to be installed above the doors. This procedure placed as much as four times the load the lintel should carry. Mr. Driver also found that the diaphragm used by Respondent was of gypsum board which, in his opinion, is not a proper material for diaphragms. Also, according to Mr. Driver's interpretation of Respondent's plan, there is no way that the wind shear force applied to the diaphragm can be transmitted to the side wall and thence down to the earth. This is a definite deficiency and Respondent's drawings and notes are not complete enough to allow a clear determination of what is required as to materials to be used and how the work should be accomplished. Other deficiencies are seen in that the drawings show a 230 foot long building without an expansion joint. In Mr. Driver's opinion, this is far too long for construction without such a joint. In addition, the 26 foot high end wall is not addressed in the design which has no indication of how the roof is to be attached to it. Mr. Driver concurs with Mr. Power's opinion regarding the insufficiency of the plans and specifications offered by Respondent for the roof trusses in that there is no framing plan nor are there specifications identified for the trusses. Shop drawings should have been provided instead of only a cut sheet. While this witness does not know what the current Brevard County practice regarding the design and construction of trusses is, he is convinced that it is as Respondent says it is, to wit: that they are completely fabricated at the shop and delivered completed for installation to the job site, this is a poor practice. Connected to the issue of roof trusses is that regarding the metal hurricane straps which Respondent indicated his plans called for. These metal straps, which can easily be bent by hand are, in the opinion of Mr. Driver, a poor method of affixing the trusses to the tie beam. There are too many things that can go wrong such as hinging, the lack of a firm seating for the strap in the concrete, the bending of the metal, and the pulling of the affixing nails through the holes in the strap thereby resulting in no grip. In addition to his dissatisfaction with the use of concrete to fill the cells in the cinder blocks, Mr. Driver also feels that the use of concrete to fill a continuous 14 foot cell is improper. In his opinion, the drawings should call for a solid block every 4 feet and for weep holes through which compaction can be noted periodically throughout that distance. All of this should be in the engineer's notes. The notes by Respondent do not identify these areas. Even though Respondent's notes called for the 14 feet to be filled, his plans failed to provide methods to insure that complete filling was accomplished. Examination of the pictures of the wall after the collapse reveals that complete filling was not accomplished and this failure on the part of Respondent to provide a reasonably foolproof method of insuring complete compaction cannot be excused and responsibility shifted to the contractor by the mere statement by Respondent on the plans that he would not inspect. Engineering practice is made up of judgment as well as the specific formulae which can be obtained from engineering textbooks. There are assumptions which may be made -- some good and some bad. In the opinion of Mr. Driver, the defects described above indicate that Respondent's assumptions were bad. As a result, his judgment was bad. He feels that, in light of all the evidence, Respondent was negligent, failed to use due care, failed to conform to accepted engineering principles, failed to accomplish drawings sufficiently detailed to instruct the contractor as to exactly what needed to he done, and failed to provide drawings which, if followed exactly as presented, would by themselves, enable a builder to construct a safe structure. Here, based on the drawings prepared and submitted by Respondent, a builder would have to demonstrate a high and exceptional degree of expertise in order to fill in the omitted details required to make the building safe. Acceptable drawing standards are not defined with specificity in the SBC. Much is subjective rather than objective. For example, nothing in the SBC prohibits the use of gypsum board as a horizontal diaphragm, but, in the opinion of Mr. Driver, it is not common practice to use it for such. This goes to the question of judgment. In any event, the code may be erroneous in some particulars and not all answers are contained in it. It is for this reason that the law requires the use of a licensed engineer whose judgment fills in the gaps left by the code. Here all the defects identified in Respondent's drawings are within the province of an engineer. These are the items an engineer is needed for to accomplish. Here, in the opinion of Mr. Driver, there are too many defects and Respondent's work does not conform to any of the standards used in the engineering community as to schooling, information gained from working with other engineers, or the witness's personal experience. In rebuttal to the above, Respondent presented no experts of his own, but testified as to his disagreement with the analyses of Petitioner's experts. The testimony by Mr. Power and Mr. Driver is found to be accurate and descriptive of the defects in Respondent's performance. There are a few exceptions such as where local Brevard County practice differs from the experience of these experts, however, taken as a whole, the evidence clearly indicates Respondent's shortcomings for the most part. The testimony of the experts has established a series of defects in Respondent's performance which he has failed to satisfactorily rebut.
Recommendation Based on the foregoing Findings Of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, RAYMOND HIRST, be placed on probation for one year, that he be reprimanded, and that he pay an administrative fine of $500.00. RECOMMENDED this 19th day of February, 1985 in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 19th day of February, 1985. COPIES FURNISHED: Carol L. Gregg, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Raymond Hirst 379 Franklyn Avenue Indiatlantic, Florida 32903 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Allen R. Smith, Jr. Board of professional Engineers Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Based upon my observation of the witnesses, their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I make the following findings of fact: In order for Petitioner to obtain a license as a building contractor in Florida, he is required to successfully complete a certification examination. The examination is prepared by the ACSI National Assessment Institute arid administered by the Department of Professional Regulation (DPR). The questions on the exam are prepared from specific reference materials disclosed to the applicants, generally accepted industry procedures and standard field knowledge. Petitioner took the building contractor's examination administered by DPR in October, 1988. There were four parts to the examination. No evidence was submitted as to the scores an applicant was required to achieve and/or the number of sections an applicant was required to pass in order to be entitled to licensure. Petitioner did not receive a score on the exam sufficient to entitle him to licensure. However, no evidence was presented as to the grades Petitioner received on the various parts of his exam. Petitioner initially challenged seven of the questions on the Construction Administration part of the exam contending that they were unclear and ambiguous, and that, in any event, he correctly indicated the "closest" answer included for the multiple choice questions. However, for the reasons set forth in the Preliminary Statement above, only two of those questions (CA #19 and CA #24) are at issue in this proceeding. No evidence was of feared as to the value of each of the challenged questions and/or the number of questions Petitioner would have to succeed in challenging in order to obtain a passing grade. The first question challenged by Petitioner, CA# 19 required the exam taker to determine the latest time that a subcontractor could effectively serve a Notice To Owner under the Mechanic's Lien Law. The reference materials provide that the Notice To Owner must be served on the owner within 45 days from the time the lienor first performs labor or delivers material to the site. The reference materials also specifically provide that receipt of the notice on the 46th day is timely where the 45th day is a Sunday. A calendar was provided with the exam materials. The 45th day in question CA #19 fell on a Sunday (September 11). Therefore, the latest day that the Notice To Owner could be served was September 12. Both September 11 and 12 were listed as answers on the exam. Petitioner selected the answer corresponding to September 11. The correct answer was September 12. Petitioner's challenge to question 19 is without merit. Question CA #24 relates to AIA Document A201 and asks the examine taker to draw an analogy between a sub-contractor's responsibilities and obligations to the contractor as being the same as one of four listed choices. According to the Respondent, the correct answer 5 (C) which states that the sub-contractor has the same responsibilities and obligations to the contractor as the contractor has to the architect and owner. Petitioner chose answer (A) which indicates the contractor has the same responsibilities and obligations to the contractor as the architect has to the owner. In support of its position, the Respondent cites paragraph 5.3.1 of AIA Document A201 which states that "by appropriate agreement, ... the Contractor shall require each Sub-contractor, to the extent of the work to be performed by the Sub-contractor, to be bound to the Contractor by terms of the Contract Documents, and to assume towards the contractor all the obligations and responsibilities which the contractor by these documents assumes towards the Owner and Architect." Petitioner interpreted the question as asking the exam taker to draw an analogy between the relationship created by the sub-contract with the other relationships listed in the various answers. Viewed in this context, Petitioner reasoned that, while a contractual relationship existed between the sub- contractor and the contractor, AIA Document A201 specifically does not create a contractual relationship between the contractor and the architect. Therefore, he eliminated answer C and instead chose answer A because there clearly is a contractual relationship between the architect and the owner. Because the question was structured in the form of an analogy, it is misleading and ambiguous and Petitioner's interpretation was reasonable. Unfortunately, while the question was drafted to test the exam taker's familiarity with paragraph 5.3.1, it could also be read to be asking an exam taker to distinguish between the various relationships created through the contract documents. Significantly, the question does not specifically track the language of paragraph 5.3.1 which indicates that the sub-contractor must "assume" all the obligations and responsibilities which the contractor "assumes" towards the Owner and Architect. Therefore, the question is misleading and Petitioner's answer was reasonable under the circumstances.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner's request that his October, 1988 examination for building contractor's license be regraded be GRANTED and that Petitioner be deemed to have correctly answered question CA #24. DONE AND ENTERED this 9th day of January, 1990, in Tallahassee, Leon County, Florida. J. STEPHEN MENTON 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 9th day of January, 1990. APPENDIX Both parties have submitted Proposed Recommended Orders. The Petitioner's Proposed Recommended Order contains a number of paragraphs of mixed findings of fact and conclusions of law which have not been numbered throughout. To the extent that the proposed findings of fact can be isolated, they are addressed below. The Petitioner's Proposed Findings of Fact The first two and a half pages of Petitioner's Memorandum simply sets forth question CA #24, the "correct" answer as determined by Respondent and Petitioner's answer. These facts are incorporated in Findings of Fact 8. The Remainder of Petitioner's Memorandum is deemed by the undersigned to constitute legal argument. The Respondent's Proposed Finding of Fact Proposed Finding Paragraph Number in the Finding of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection Adopted in substance in Findings of Fact 4. Incorporated in the Preliminary Statement. Also adopted in substance in Findings of Fact 5. Incorporated in the Preliminary Statement. Also adopted in substance in Findings of Fact 5. Incorporated in the Preliminary Statement. Also adopted in substance in Findings of Fact 5. Incorporated in the Preliminary Statement. Also adopted in substance in Findings of Fact 5. Incorporated in the Preliminary Statement. Also adopted in substance in Findings of Fact 5. The first sentence is incorporated in the Preliminary Statement. The second sentence is subordinate to Findings of Fact 7 and 8. Incorporated in the Preliminary Statement. Subordinate to Findings of Fact 7. Subordinate to Findings of Fact 8. COPIES FURNISHED: Kenneth D. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street, Ste 60 Tallahassee, FL 32399-0792 E. Harper Field Deputy General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Curtis A. Littman, Esquire Littman, Littman, Williams & Strike P. O. Box 1197 Stuart, Florida 34995 Fred Seely, Executive Director Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202 Richard Eaton 2601 S. D. Miami Street Stuart, Florida 34997
The Issue Whether Petitioner's challenge regarding the June 1997 landscape architecture licensure examination should be sustained.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: In June of 1994, Petitioner took the national landscape architecture licensure examination (LARE). LARE is an examination developed, administered and graded by the Council of Landscape Architectural Registration Boards (CLARB). The 1994 version of LARE, like all subsequent pre-1997 versions of the examination, contained seven parts: Legal and Administrative Aspects of Practice (part 1), Programming and Environmental Analysis (part 2), Conceptualization and Communication (part 3), Design Synthesis (part 4), Integration of Technical and Design Requirements (part 5), Grading and Drainage (part 6) and Implementation of Design Through the Construction Process (part 7). Three of the seven parts of the examination, parts 1, 2 and 7, consisted of multiple choice questions. Parts 2 and 7 had 90 and 120 questions, respectively. The passing score for each part of the examination was 75. On the June 1994 examination, Petitioner received a passing grade of 75 on part 2 and failing grade of 69 on part 7. In June of 1995, Petitioner retook part 7 of the examination (as well as four other parts of the examination she had failed in 1994). Petitioner received a failing grade of 71 on part 7 of the June 1995 examination. After receiving her scores on the June 1995 examination, Petitioner sent a letter, dated October 10, 1995, to the Department of Business and Professional Regulation (Department), which read as follows: Pursuant to Section 120.57(1), Florida Statutes, I would like to petition for a formal hearing before the Division of Administrative Hearings. I am disputing my scores achieved on the Landscape Architecture Registration Examination (LARE) for sections 3, 4, 5 6 and The reason I am disputing the score on these sections is because I was comfortable with the examination format, paid specific attention to detail and felt confident that I had successfully designed appropriate buildable solutions to the problems meeting or exceeding minimum competency. The procedures for requesting a formal hearing were written with what appear to be contradictions and therefore I am enclosing a copy that was mailed to me. Since the information pamphlet specifically states that NO CHALLENGES TO SECTIONS 1 THRU 7 OF THE EXAMINATION WILL BE ACCEPTED, it is not clear then why it states that a candidate electing to review the examination for the purpose of submitting challenges is then stated. I did call the Department of [Business and Professional] Regulation and spoke with JoAnn Richardson at the Bureau of Testing for clarification. In my first conversation with her, she stated that I would be able to request a pre-hearing review in order to accurately challenge my scores. In a second conversation with her on that same day, she then said that it would be O.K. to go to the review and then submit this letter of petition for a formal hearing. Since the dates in this pamphlet do not accurately reflect our conversation, I asked her if she could write it in a letter for me so that I was confident that I would not miss the deadline to file for this petition. I have not received this letter from her and therefore am petitioning for a formal hearing at this time with a request for a pre-hearing review of my examination. Petitioner received a letter from the Department, dated October 27, 1995, acknowledging receipt of her October 10, 1995, letter and advising her that her letter had been "forwarded to the Office of the General Counsel for review and action." No action, however, was subsequently taken on the matter. Petitioner telephoned the Department on several occasions to ascertain the status of her hearing request. She was told that she would be notified when a hearing was scheduled. Such notification, however, never came. Petitioner therefore applied to retake, in June of 1996, those parts of the LARE she had not yet passed, including part 7. The Pre-Exam Orientation Information booklet that CLARB sent to candidates before the June 1996 examination alerted candidates to the following: 1996 will be the last time to take Sections 2 and 7 of the LARE separately. In 1997, Sections 2 and 7 of the current test will be combined into a new Section 2(7)- Analytical and Technical Aspects of Practice. If a candidate does not pass both Sections 2 and 7 separately in 1996 he/she will be required to complete the new Section 2(7). Petitioner received a failing grade of 74 on part 7 of the June 1996 examination. She did not take any steps to challenge this failing grade. The revisions announced in the 1996 Pre-Exam Orientation Information booklet were made to the 1997 version of the LARE. Parts 2 and 7 of the examination were replaced by a new part 2(7), entitled "Analytical and Technical Aspects of Practice," which consisted of 130 multiple choice questions. This new part of the examination tested the same general knowledge, skills and abilities as had parts 2 and 7 of the previous examinations, but did so in a more efficient manner. In June of 1997, Petitioner took part 2(7) of the examination and received a failing grade. The failing score that Petitioner received on part 2(7) of the June 1997 examination, and the failing scores that she received on part 7 of the 1994, 1995, and 1996 examinations, are reliable indicators of her competency in the areas tested at the time she took the examinations. These failing scores reflect her failure to meet minimum competency in the areas tested, as determined by the panel of experts who set the passing scores for these examinations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order finding that Petitioner is not qualified for licensure as a landscape architect because she has not yet passed the licensure examination, as required by Section 481.311(2)(a), Florida Statutes. DONE AND ENTERED this 11th day of September, 1998, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 1998.
The Issue Whether Petitioner's application for license as an architect pursuant to Chapter 481, Florida Statutes, should be approved.
Findings Of Fact In April, 1978, Petitioner John J. Bagdonas, Miami, Florida, inquired of Respondent State Board of Architecture concerning eligibility for registration as an architect in the State of Florida. He was advised by letter of April 18, 1978, from Herbert Coons, Jr., Respondent's Executive Secretary, that he was ineligible for such registration since he lacked a degree from an accredited program in architecture. (Respondent's Exhibit 1) On October 22, 1979, Petitioner submitted an application to Respondent for Class 13 certification as an architect pursuant to Chapter 467, Florida Statutes. He indicated in the appropriate block of the application form that he held a current registration as an architect in Massachusetts which had been issued in 1976. By letter of November 9, 1979, Petitioner was informed by Mr. Coons that his application was denied because he did not have a professional degree or ten years experience as a practicing architect, and he was advised as to his right to a hearing pursuant to Section 120.57, Florida Statutes. By letter of November 13, 1979, Petitioner protested the decision and requested a hearing. (Petitioner's Exhibit 1, Respondent's Exhibit 1) Further correspondence ensued wherein Petitioner maintained that he was qualified for registration pursuant to current law concerning licensure by endorsement. He was making reference to a 1979 act that became Section 481.213(3)(b), F.S., which provided that Respondent Board must certify an applicant holding a valid license to practice architecture issued by another state if the criteria for issuance of such license were substantially equivalent to the licensure criteria which existed in Florida at the time the license was issued. (Respondent's Exhibit 1) By letter of January 23, 1980, Mr. Coons invited Petitioner to appear before the Board's Education Committee in February to "discuss your education in connection with your application for registration." The letter recommended that petitioner bring examples of his past work, letters of recommendation, and any other additional information concerning his educational background to the meeting. Petitioner, through counsel, declined the offer by letter of January 29, 1980, and elected to proceed with this administrative proceeding. (Petitioner's Exhibit 2, Respondent's Exhibit 1) Petitioner graduated from high school in Boston, Massachusetts in 1962 and commenced employment with an architectural firm in that city. During the period May 1962 to November 1974, he was employed by five architectural firms in Massachusetts. During this twelve-year employment period, Petitioner prepared working drawings, office presentation drawings, design, detailing, construction drawings, and professional administration. At various times during his career, he handled several projects in their entirety, including the coordination of mechanical and electrical work with architectural drawings, client contact, supervising construction phase, shop drawings, project meetings, and field sketches. He was unemployed from November 1974 through December 1976. During the period January 1977 to the present, Petitioner has been employed successively by three architectural firms in Miami and Hollywood, Florida where he performed functions similar to those in prior years. He has been employed by the firm of Bouterse, Perez, and Fabrigas, Miami, Florida, since February 1979. He currently is the project manager for the Douglas Road Station for the rapid transit system in Miami. All of Petitioner's prior employers have submitted letters of reference concerning Petitioner's employment wherein they variously characterize his education, practical experience, and professional integrity as excellent or satisfactory. (Respondent's Exhibit 1) Petitioner attended the Boston Architectural Center from 1962 to 1965 while he was employed on a full-time basis, but was unable to graduate due to his heavy schedule. During his attendance, he acquired 33 credit hours in architectural subjects with satisfactory grades. In the course of his employment, Petitioner has worked on a variety of projects including schools, office buildings, recreational facilities, nursing homes, and family housing. He has had training and experience in site and environmental analysis, schematic design, building cost analysis, code research, design development, construction documents and graphics, specifications and material research and document checking and coordination, building procedures, construction phase observation and office procedures (Testimony of Petitioner, Respondent's Exhibit 1) Petitioner was registered as an architect on February 5, 1976 in Massachusetts after successful completion of the National Council of Architectural Registration Board's (NCARB) equivalency examination in June 1975 and the NCARB professional examination in December 1975. At the time Petitioner was issued registration in that state, the law provided in Section 60C of Chapter 112, General Laws, that an applicant must either submit satisfactory evidence of graduation from an accredited school of architecture and of such practical experience in architectural work as the State Board proscribed by regulation, or that an applicant could submit satisfactory evidence of such other academic experience, practical experience, or both, as the Board prescribed. Regulations promulgated by the State Board pursuant to the General Laws provided in Chapter 30A, Section 4, that an applicant who was not a graduate of an architectural school would be required to submit satisfactory evidence of having completed eight years of practical experience in architectural work and one additional such year of work for each year short of graduation, but not more than five additional years. (Testimony of Petitioner, Petitioner's Exhibit 3) NCARB is a national organization that Sponsors registration laws in all states, formulates the standard examinations for architect registration, including Florida, establishes equivalence for its basic certificate requirements in education and training, and maintains and transmits professional records to state boards with recommendations for registration of architects who meet the organizational standards. If a registered architect in one state holds an NCARB certificate, NCARB will transmit a certified copy of his record to any state board, together with a recommendation that he be licensed as an architect without further examination. With such certification, reciprocal registration can be obtained in a great majority of the states without further examination and without making a personal appearance. Issuance of the NCARB certificate is based on the highest standards established by individual state boards. The NCARB equivalency examination is a two-day, twenty hour examination concentrating on architectural history and theory, design and construction theory and practice. It is required of non-degree applicants for NCARB certification. The Professional examination is a two-day, sixteen hour examination designed to place the candidate in areas relating to actual architectural situations whereby his abilities to exercise competent value judgments are tested and evaluated. It covers the subjects of environmental analysis, building programing, design and technology, and construction. (Testimony of Petitioner, Petitioner's Composite Exhibit 4, Respondent's Exhibit 1) In 1978, Petitioner applied for and was granted NCARB Certification. In evaluating his record in this regard, NCARB determined that he possessed the equivalent of five years of education based on his academic credits and employment by architectural firms. On October 19, 1979, NCARB transmitted the Petitioner's record to Respondent in support of his application for state registration. (Testimony of Petitioner, Respondent's Exhibit 1) In Respondent's Rule 21B-8.05, Florida Administrative Code, provides that applications for registration will be reviewed by Respondent's Educational Advisory Committee when requested by the Board, to determine, among other things, a comparison of standards for equivalency for applicants who do not hold an academic degree in architecture. In such instances, the Committee customarily meets with the applicant, reviews his academic credentials and experience, and makes recommendations for registration to Respondent Board of Architecture. In making such determinations in the past, the Committee has on several occasions recommended candidates for registration who have not completed their degree requirements. In several instances, they have recommended that an applicant enroll in a graduate program in a special capacity so that he could be evaluated and a determination made as to his capabilities which might justify a recommendation of registration. However, in such instances, the individual was not required to obtain a degree prior to a favorable recommendation. In the opinion of the present chairman of the Educational Advisory Committee, Arnold F. Butt, who is presently the chairman of the Department of Architecture at the University of Florida, it is possible for the Committee to determine that an applicant has attained the required capability by work experience, but it is necessary that he demonstrate such fact to the Committee. He does not believe that providing an applicant an equivalent of one year's formal education for one year of architectural work experience is sufficient in itself to permit such a determination without evaluating the nature and extent of such experience. He is further of the opinion that, although successful completion of the NCARB equivalency examination demonstrates that a candidate has some minimal capabilities, which any candidate of a degree program would have, it is not sufficient in itself as a substitute for formal education, particularly in the area of architectural design. The Petitioner's application and NCARB record were not referred to the Educational Advisory Committee, nor did it make a recommendation to Respondent prior to the letter of denial of the application on November 9, 1979. (Testimony of Butts, Rule 21B-8.05, F.A.C.)
Recommendation That Respondent Florida State Board of Architecture deny the application of Petitioner John J. Bagdonas for license by endorsement pursuant to Chapter 481, Florida Statutes. DONE and ENTERED this 7th day of July, 1980, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Scott Eber, Esquire 151 SE 14th Terrace Miami, Florida 33131 John Rimes, Esquire Assistant Attorney General The Capitol - LL04 Tallahassee, Florida 32301 State Board of Architecture Attn: Mr. Herbert Coons, Jr. 2009 Apalachee Parkway Tallahassee, Florida 32301
Findings Of Fact In June 1995, Kenneth Gauthreaux (Petitioner) took the Pre-Design part of the Architecture Examination (Examination). A minimum grade of 75 is required to pass the Examination. The Department of Business and Professional Regulation, Board of Architecture (Respondent) notified Petitioner that he had failed the Examination having received a grade of 73. The Examination is a national examination and is graded by national examiners. Respondent issues licenses to practice architecture in the State of Florida and administers the Examination on behalf of the State. Petitioner challenges, as invalid, the answers selected by the national examiners to questions 9, 16, 73, and 122 of the Examination, which are A, C, A, and D, respectively. Petitioner selected answers B, A, B, and C to the questions, respectively. At hearing, Petitioner withdrew his challenge to question 73, answer A. As the Examination is a national examination, in answering the questions, what is generally occurring nationally, as opposed to locally, is controlling. For example, local codes are not applicable. The correct answers to questions 9, 16, and 122 are the answers identified by Respondent as the answers by the national examiners, i. e., A, C, and D, respectively. The answers selected by Petitioner are not correct. The challenged questions and answers are supported by reference materials which are approved and generally accepted in the national architecture community. The scope of knowledge required for the challenged questions and answers is not beyond the knowledge reasonably expected from a candidate for licensure. The challenged questions contain sufficient information for a candidate for licensure to select the correct answer. The challenged questions are clear and unambiguous. The challenged questions are not arbitrary or capricious. The challenged questions are not devoid of logic or reason. The challenged questions are valid. Statistics indicate that 77 percent of the candidates for licensure (candidates), who took the Examination, answered question 9 correctly; 64 percent of the candidates answered question 16 correctly; and 54 percent of the candidates answered question 122 correctly.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Board of Architecture enter a final order dismissing Kenneth Gauthreaux's examination challenge and denying him licensure. DONE AND ENTERED this 26th day of July, 1996, in Tallahassee, Leon County, Florida. ERROL H. POWELL, 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 26th day of July, 1996. APPENDIX The following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact Introductory Paragraphs Paragraph 1. Rejected as being argument, or conclusions of law. Paragraph 2. Rejected as being not supported by the evidence presented. Question No. 122 Paragraph 1. Rejected as being unnecessary, argument, or conclusions of law. Paragraph 2. Rejected as being not supported by the evidence presented, argument, or conclusions of law. (The "Additional Evidence" is not admitted into evidence. See, the Preliminary Statement.) Paragraph 3. Rejected as being subordinate. Paragraph 4. Rejected as being subordinate, argument, or conclusions of law. Paragraph 5. Rejected as being subordinate. Paragraph 6. Rejected as being subordinate, or unnecessary. Paragraph 7. Rejected as being argument, or a conclusion of law. Question No. 16 Paragraph 1. Rejected as being not supported by the evidence presented, argument, or conclusion of law. Paragraph 2. Rejected as being not supported by the evidence presented, argument, or a conclusion of law. Paragraph 3. Rejected as being subordinate, not supported by the evidence presented, argument, or conclusions of law. Paragraph 4. Rejected as being argument, or conclusions of law. Question No. 9 Paragraph 1. Rejected as being argument, or conclusions of law. Paragraph 2. Rejected as being subordinate, unnecessary, or argument. Paragraph 3. Rejected as being argument, or conclusions of law. Paragraph 4. Rejected as being argument, or conclusions of law. Paragraph 5. Rejected as being argument, or conclusions of law. Paragraph 6. Rejected as being subordinate, or unnecessary. Paragraphs 7, 8, and 9 are not considered part of Petitioner's proposed findings of fact, but part of his proposed conclusions of law. If Petitioner intended the said Paragraphs to be part of his proposed findings of fact, they are rejected as being argument, or conclusions of law. Respondent's Proposed Findings of Fact 1. Partially accepted in finding of fact 1. 2. Partially accepted in finding of fact 2. 3. Partially accepted in finding of fact 2. 4. Partially accepted in finding of fact 2. 5. See Preliminary Statement. 6. See Preliminary Statement. 7. Partially accepted in finding of fact 4. 8. Partially accepted in finding of fact 4. 9. Partially accepted in finding of fact 7. 10. Partially accepted in finding of fact 11. 11. Partially accepted in finding of fact 10. 12. Partially accepted in finding of fact 8. 13. Partially accepted in finding of fact 9. 14. Partially accepted in finding of fact 13. 15. Partially accepted in finding of fact 6. 16. Partially accepted in finding of fact 15. 17. Partially accepted in finding of fact 15. 18. Partially accepted in finding of fact 15. 19. Rejected as being subordinate. NOTE--Where a proposed finding has been partially accepted, the remainder has been rejected as being subordinate, irrelevant, unnecessary, cumulative, not supported by the greater weight of the evidence, not supported by the evidence presented, argument, or a conclusion of law. COPIES FURNISHED: Mr. Kenneth Gauthreaux 15151 SW 128th Avenue Miami, Florida 33186 R. Beth Atchison Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angel Gonzalez, Executive Director Board of Architecture and Interior Design Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Is Petitioner entitled to one additional point on the October 1996 Professional Civil Engineer Examination so as to achieve a passing score for licensure in Florida?
Findings Of Fact Petitioner took the Civil Engineer Examination given in October 1996. The Department of Business and Professional Regulation's Bureau of Testing notified Petitioner by Examination Grade Report dated February 17, 1997, that she had earned a score of 69.00 on the Civil Engineer Examination. The minimum passing score for the Civil Engineer Examination is 70.00. Petitioner timely requested formal hearing and challenged only Question 120, for which she received no points. Petitioner is trained as a materials engineer. Question 120 is a soils and foundation problem outside her concentrated area of study. It is an open book examination question. Petitioner selected the correct equation from the applicable manual, but acknowledged that she solved the variables of that equation incorrectly. The National Council of Examiners for Engineering and Surveying (NCEES) produced, distributed, and was responsible for grading the examinations. Petitioner contended that the examiner who graded her answer sheet applied different criteria than the examination criteria published by the NCEES. Petitioner further contended that since one criterion her grader actually used was merely to "write the correct equation," she should be awarded at least one point on that basis. However, a comparison of the actual grader's handwritten "summary" on Petitioner's Solution Pamphlet (Respondent's Exhibit 3) and the NCEES's Solutions and Scoring Plan (Respondent's Exhibit 2) does not bear out Petitioner's theory. It is clear that out of five possible parts of the question, which five parts total two points' credit each, merely selecting the correct equation from an open text would not amount to two points, or even one point, credit. I accept as more competent, credible and persuasive the testimony of Eugene N. Beauchamps, the current Chairman of the NCEES Examination Policy Committee and a Florida licensed Professional Engineer, that the grader's "summary" describes what he actually reviewed in Petitioner's written solution to Question 120 rather than establishing one or more different grading criteria. In order to receive a score of two on Question 120, the candidate was required to demonstrate any one of five requirements listed in the NCEES Solution and Scoring Plan for "2-Rudimentary Knowledge." The first requirement in the NCEES Solution and Scoring Plan (Respondent's Exhibit 2) for receiving a score of two points is, "Determines effective overburden stress at mid- depth of clay layer." The remaining four NCEES scoring criteria required that the examinee: Computes the change in effective stress at mid- depth of the clay layer due to placement of the fill. Computes the primary consolidation settlement, based on a change in effective stress, due to the fill surcharge. Evaluates the Average Degree of Consolidation and the Time Factor. Determines the waiting period after fill placement recognizing the existence of double-drained conditions. In order to gain two more points (total 4 points) so as to demonstrate "More Than Rudimentary Knowledge But Insufficient to Demonstrate Minimum Competence," Petitioner would have to have met two of the five bulleted criteria. For two more points (total 6 points) for "Minimum Competence," Petitioner would have had to score three bullets. For two more points (total 8 points) for "More than Minimum But Less Than Exceptional Competence," Petitioner would have had to score four bullets. Finally, to attain "Exceptional Competence" for 10 total points, Petitioner would have had to score all five bullets. In the first correct equation for answering Question 120, "p sub zero" (p naught) equals the present effective overburden pressure, which represents what clay was present before anything was put on top of the clay layer. "P" equals the total pressure acting at mid-height of the consolidating clay layer or the pressure of the dirt and the water in the dirt. "H" equals the thickness of the consolidating clay layer. Petitioner's solution for the first bullet, "determining the effective overburden stress at mid-depth of clay layer," indicated p sub zero (p naught) as the "present effective overburden pressure," but it incorrectly calculated p sub zero equaling 125 pounds multiplied by 13 feet. This is incorrect because the effective overburden pressure would not include 13 feet of fill. The 13 feet of fill is not part of p sub zero, the present effective overburden pressure. Petitioner's solution for the first bullet, also multiplied water, represented by 62.4, by 12, which is incorrect. She should have used a multiplier of 10 to receive credit for this problem. The grader indicated the correct equation was used incorrectly by Petitioner because of the two foregoing incorrect calculations. The equation, as Petitioner stated it, was correct and her multiplication was correct. Her solution identified P sub zero as present effective overburden pressure but present effective overburden pressure would not include the fill. Petitioner had the correct equation for the present effective overburden pressure and her mathematics were correct. However, she did not use the consolidation equation correctly, not obtaining the correct percentage of primary consolidation. As stated, the problem did not consider the fill as part of the present effective overburden pressure. Her solution also contained the correctly written time rate of settlement equation but failed to use it, and no waiting period was determined. The practical result of Petitioner's error could range from a cracked building to a collapsed building, depending upon the degree of error to site and materials.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a Final Order denying Petitioner's challenge and affirming her score as one point below passing. RECOMMENDED this 3rd day of March, 1998, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1998. COPIES FURNISHED: Susan E. Wilson 3581 Jose Terrace Jacksonville, Florida 32217 R. Beth Atchison Assistant General Counsel Department of Business and Profession Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Angel Gonzalez, Executive Director Department of Business and Profession Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Lynda L. Goodgame General Counsel Department of Business and Profession Regulation 1940 North Monroe Street Tallahassee, Florida 32399
The Issue The issue for determination is whether Petitioner is eligible for licensure by the Board of Professional Engineers.
Findings Of Fact In October 1996, Henry A. Vidal (Petitioner) took the Principles and Practice part of the Electrical Engineer Examination (Examination). A minimum score of 70 is required to pass the Examination. The Department of Business and Professional Regulation, Board of Professional Engineers (Respondent) notified Petitioner that he had not successfully completed the Examination, having received a score of 67. The Examination is a national examination and is graded by national examiners. Petitioner challenges questions numbered 131 and 133 on the Examination. A scoring plan is used for grading each question. For question numbered 131, the highest score achievable is 10. According to the scoring plan, correctly solving any one part of the problem in the challenged question earns a score of 2; correctly solving any two parts, earns a score of 4; correctly solving any three parts, earns a score of 6; correctly solving any four parts, earns a score of 8; and correctly determining five specific items, even though the solution need not be perfect, earns a score of 10. Petitioner received a score of 4 on question numbered 131. Regarding question numbered 131, under the scoring plan, Petitioner is not entitled to any additional points. Even though Petitioner may have indicated his knowledge of the problem in the challenged question, he failed to solve the problem correctly, e.g., omitting a component and miscalculating. Petitioner solved two parts correctly, earning a score of 4. For question numbered 133, the highest score achievable is 10. According to the scoring plan, there are ten parts to the problem in the challenged question and correctly solving one or two parts, earns a score of 2; correctly solving three or four parts, earns a score of 4; correctly solving five or six parts, earns a score of 6; correctly solving seven or eight parts, earns a score of 8; and correctly solving nine or ten parts, earns a score of 10. Petitioner received a score of 8 on question numbered 133. Regarding question numbered 133, under the scoring plan, Petitioner is not entitled to any additional points. Even though Petitioner may have indicated his knowledge of the problem in the challenged question, he failed to solve the problem correctly, e.g., using the incorrect quantity. Petitioner solved eight parts correctly, earning a score of 8. The examiners for the Examination re-graded Petitioner's answers to questions numbered 131 and 133. Petitioner was denied additional credit for the challenged questions by the examiners. Petitioner's answers were not arbitrarily or capriciously graded. The grading process was not devoid of logic and reason. The scoring plan was properly used. Questions numbered 131 and 133 are not beyond the scope of knowledge that is required of a candidate for licensure as an electrical engineer and are capable of being answered by such a candidate for licensure. Considering the proof, the opinions of Respondent's expert were more persuasive. The evidence presented was insufficient to warrant additional credit to Petitioner on questions numbered 131 and 133.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Board of Professional Engineers enter a final order dismissing the examination challenge of Henry A. Vidal and denying him licensure. DONE AND ENTERED this 27th day of March, 1998, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1998. COPIES FURNISHED: Henry A. Vidal, pro se 5832 Alton Road Miami Beach, Florida 33140 R. Beth Atchison Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angel Gonzalez, Executive Director Department of Business and Professional Regulation Board of Professional Engineers 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Petitioner Robert Powers Wheeler 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 Architectural Examination in June, 1981. This portion of the examination consists of a 12-hour sketch problem involving design and site considerations. 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 the National Council of Architectural Registration Boards (NCARB). The examination itself involves the design of a structure by an applicant including requirements for placing the structure on the site, elevations, building cross-sections, facades, and floor plans. Information supplied to the applicant includes a preexamination booklet setting forth the architectural program to be accomplished and the various requirements to which the applicant is expected to apply himself in order to receive a passing grade. At the time of the examination itself, other information is supplied to the applicant to enable him to more adequately design the structure requested and perform the necessary technical architectural requirements. In general, the purpose of the examination is to require the applicant to put together a design and site plan solution in response to a program submitted to him by NCARB. This portion of the examination allows the national testing service grading the examination and, through them, the Florida Board of Architecture to determine if an applicant is able to coordinate the various structural, design, technical, aesthetic, energy and legal requirements which are tested in written form in the other portion of the examination given in December of each year. The grading of the Site Planning and Design Test is accomplished by the review of the applicant's product by at least three architects selected by the various architectural registration boards of some 20 states, who are then given training by NCARB to standardize their conceptions of the minimal competence required for a passing grade. Each architect-grader is then asked to review various solutions submitted by applicants on a blind grading basis, that is, the grader has no knowledge of the name or state of origin of the applicant whose solution he is grading. Further, the grader does not know the grade assigned to any applicant's solution by any other grader. Graders are instructed to make notations for areas of strength and of weakness on the grading criteria and are required to determine, based upon an overall conception of the applicant's solution, whether a passing grade of "3" or "4" should be assigned to each applicant's solution. In order for an applicant to pass, he must receive at least two passing grades from the three architects who independently grade the applicant's solution. Petitioner received a grade of "2," which is a failing grade, from each of the three graders who graded his examination. Although the Executive Director of the Florida Board of Architecture, who is also an architect, testified that Petitioner made a valiant effort to pass the examination, he identified several material areas wherein Petitioner failed to achieve minimal competency in his presentation or wherein Petitioner failed to observe program requirements. Petitioner failed to meet the owner's goals in that he approached the minimum square footage requirement while failing to provide amenities, which was a prime directive in the examination program. Petitioner had difficulty with regard to the pedestrian traffic flow on his third-floor plan. Petitioner had difficulty with his parking solution as well as with fulfilling the requirement of keeping the building architecturally compatible with surrounding structures. The Board's Executive Director, who has many years' experience in grading Site Planning and Design Tests, would have also given to Petitioner an overall grade of "2." The graders of Petitioner's examination were not uniform in identifying areas of concern regarding Petitioner's weaknesses in his solution. However, the procedure to be utilized by graders is set forth in the Grader's Manual and specifies that under the holistic grading system each grader is to determine his overall impression of a candidate's submission in order to assign a passing or a failing grade. After making his determination based upon the overall project, the grader then returns to his areas of special concern. Although the different graders may have identified different areas of concern, all graders found Petitioner's submission to be below minimal competency requirements. Although Petitioner disagrees with his grade, he presented no evidence to show 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.
Recommendation Based on 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, 1981, architecture examination and upholding the grade awarded to Petitioner on that examination. DONE and RECOMMENDED this 11th day of January, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, 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 11th day of January, 1983. COPIES FURNISHED: Mr. Robert Powers Wheeler 5501 South West 147th Terrace Miami, Florida 33158 John J. Rimes, III, Esquire Department of Legal Affairs The Capitol - 1601 Tallahassee, Florida 32301 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Herbert Coons, Jr., Executive Director Board of Architecture 130 North Monroe Street Tallahassee, Florida 32301
