The Issue The issue for consideration herein is whether the Petitioner was properly graded on the UNE examination for certification in the field of landscape architecture given in Florida in June, 1989.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Thomas W. Hoddinott, was a candidate for examination and licensure as a landscape architect in the state of Florida. The Board of Landscape Architects, is the state agency responsible for the licensure and regulation of the profession of landscape architecture in Florida. Petitioner took the Florida landscape architecture examination administered in June, 1989. When the examination scores were announced, it was determined that of the five sections involved, on all of which a minimum score of 75 was required to pass, Petitioner earned a passing score of 75 on Section 6, the "Florida Section", but failed the other four sections. He received a score of 65 on Section 1, "Professional Practice"; 65.9 on Section 3, "Design application"; 61.1 on Section 4, "Design Implementation"; and 60.5 on Section 5, "Grading and Drainage." Petitioner requested a reevaluation of his scores and by amended grade notification dated January 22, 1990, was advised his score of 75 on Section 6 had been raised to 76.2, but his failing grades on the other four sections had not been changed. Thereafter, Petitioner filed a Petition for formal hearing herein claiming that in the case of Sections 3 and 4, both dealing with design, he should have been awarded extra credit sufficient to change his grade from fail to pass. At hearing, Petitioner announced his challenge would be limited to the two major designs called for in questions 3A and 3B, and there would be no challenge to Section 4. The grading procedure for the landscape architecture examination, a national examination, (Uniform National Examination - UNE), is composed of five sections on which multiple choice questions and drawings are required. For a specific performance area, that in which the candidate is required to complete the design of a specific project consistent with the particulars outlined in the problem, an evaluation guide outlines the problem concerning which the examination is being given, and sets out the criteria by which the candidates solution is to be evaluated. The standards applied are national standards and candidates are held to the same elements nationwide. These standards are set by master graders from each state who meet collegiately to set the pertinent standards. Section 3 of the June 9, 1989 examination was a multiple choice test accompanied by two required drawings, 3A and 3B. The candidate was required, in order to achieve a successful passing grade, to pass all three parts. The scores on each of the three parts are added together and must total a raw score of 94 (adjusted to 75) in order to pass. Mr. Oliver was the master grader on the June, 1989 examination and was given the required standardization training for that duty. He also attended a training session for question 3A in Georgia as a master grader. Whereas question 3B is graded only by Florida graders, the other portion could be graded by either Florida or Georgia graders. During the grading process, the examiners were split into two groups headed by a master grader. They were then standardized as to how to grade the examination and what to look for. They were also advised of the permissible tolerances to be applied and other like factors. When the examinations were graded, they were forwarded to the Department. If any challenges were received, the challenged question was sent to another master grader who, with only Florida examiners, regraded the examination sheets and reevaluated the challenges. The original grading on the June, 1989 examination was done in Savannah, Georgia, immediately after the examination by examiners from Florida and Georgia together. Each examination was graded by several graders and the graders were asked to grade the same area twice in an effort to insure reliability and consistency among the grades. All candidates are offered an opportunity to come to Tallahassee to write their objections to questions on which they failed to receive a passing score, and those questions were regraded in light of the objections. In the instant case, as it relates to question 3A, examiners found a strong correlation between Petitioner's original score and the score on regrade. Though there were two differences in the sub-scores awarded, the score remained the same. As to question 3B, as a result of the regrading, Petitioner was awarded 1 additional point. With regard to Question 3A, Petitioner disputes the score he was awarded concerning certain sections of that question. The instructions and problem statement reads: The Department of Transportation of a large city) (population 500,000), is planning a new five mile parkway in a 180 foot right-of-way with occasional parcels designated parkway plazas. The prime consultant, a large transportation planning firm, has engaged you to do the site design for a series of parkway plazas along the right-of-way. This problem is one of these plazas. You are to prepare a site analysis that identifies the influence of existing off- site and on-site conditions on the site plan; a concept diagram and concept statement that illustrate the functional relationships and site organizations of the required program elements; and a site plan that identifies and renders the program elements and design features. After the instructions were outlined, a site description was provided; objectives for the project were outlined, both in general and specifically; and specific program elements and design features were outlined which were to be included in the plan designed by the candidate. The evaluation guide for this question listed 16 separate areas, many of which were broken down into sub- elements. For each of the 16 major areas, points were awarded based on the number of the sub-elements included and accepted in the candidate's solution. For example, area question 1 dealt with site inventory and analysis factors, and included the site inventory elements were such factors as: -Heavy traffic on the Century City Parkway -Bus routes on the parkway -Noise from the parkway -Residential neighborhoods on the northwest and east of the park -Existing park -Continuation of the bike path through the plaza -Bike lanes on Country Club Road -Major intersection -Site visibility-triangle location noted -Bus pull-off -Opposite-side bus pull-off -Railroad switching yard and/or 8' screen wall noted -Existing tree planting -Seasonal or prevailing wind, harsh or mitigating winds -Temperature ranges -Topography -Soils -Views -Utility corridor -Drainage -Other relevant site inventory elements (count each) These factors were to be considered in light of their use of the program elements and design features which define those particular characteristics which must be included in the candidate's individual design. The program elements were described as, for example: Pedestrian Sitting Area: This part of the site should be at least 8,000 square feet of paved area. It should offer a good view of all plaza activity, the sculpture and the parkway traffic. Seating arrangement should encourage communication and socializing. The design features for this particular program element were: 64 LF of benches with backs 100 SF of seat wall or slab benches Some of the trees in grated pavement cuts At least 50% of the area is to be specialty paving Bollards for traffic separation Other program elements in this problem included Bike Node; Bus Stops: Crosswalks; Urban Sculpture; Sound Attenuation Wall; Linkage to the Existing Park; and Planting. Each of these program elements also have design feature criteria related which were to be considered and utilized by the candidate in his or her design. The degree of successful compliance with the stated program elements and the design features determined the number of points awarded for the candidate's solution. For example, with regard to the elements described in paragraph 7, supra, if the candidate complied with fewer than 10 elements, he or she was awarded 0 points; for 10 elements noted, 1 point; for 12 elements noted, 2 points; for 14 elements noted, 3 points; for 16 or more elements noted, 4 Points. Petitioner received a score of 0- on his answer to question 3A. He claims this was inappropriate because the pedestrian sitting area of 8,000 square feet is found on the answer sheet as is the bike node. The bus stop called for is identified as a bus node; required crosswalks are indicated; the urban sculpture is identified and sited; and the required linkage is provided by the crosswalks through the bike node. The sound attenuation wall is, admittedly, not identified. Petitioner admits he did not treat the issue of planting there because he did not think it was included, but based on his analysis of his answer, he believes he included 7 of the 9 required sub- elements, which, he feels, should give him three points. According to Mr. Oliver, a self-employed landscape architect who is also an adjunct professor in the graduate program of landscape architecture at Florida International University and a master grader for the Board of Landscape Architects, the award of 0 points to Petitioner here was appropriate because, while Petitioner may have put some of his elements in box A, the test required that this area be demonstrated in box B. Under the terms of the examination, the elements had to be shown as labeled and "proportionately sized" within an approximately 10% margin. While the 8,000 square feet of pedestrian seating area were indicated, Petitioner was not given credit for the bike node because its size exceeded the 10% allowance. The bus node also was more than 10% bigger than that which was called for, and it was not properly labeled, being called a "node" instead of a "stop." The crosswalks were not labeled as such, and the snack shop was not connected to the existing park. Petitioner was given no credit for planting, but was given credit for including the urban sculpture. Taken together, Petitioner received credit for only two of the required sub- elements, and since his total approval was less than 10, he was awarded a score of 0. This appears to be appropriate. Examinations such as the one in issue here are designed to test minimum competence under the fairest conditions. Examination criteria, as defined in the program elements, are the only factors considered. In the instant case, the concept diagram portion should be precise as to sizes, since sizes deal with proportion and, therefore, have to be approximately in proportion. For example, a 2,500 square foot unit cannot be shown on the plan the same size as an 8,000 square foot unit. Petitioner claims that the size of the diagram provided to him limited labeling and proportions with clarity and readability. The important thing is, in his estimation, that the diagram and plan be readable by the client, and this could not be done if actual proportions were used. In this contention, Petitioner is correct, but, according to Mr. Oliver, the Board recognizes this and permits the candidate to draw the unit out of proportion if it is labeled as being proportioned, and the candidate's notes reflect that. This, Petitioner did not do. With regard to the question of linkage, Mr. Oliver admits the question is poorly worded on this examination, but claims it should be taken as meaning linkage to the existing park to the north. Since there is an ambiguity here, and that ambiguity could well have created a problem for the Petitioner, he should get credit for that particular sub-element. Even including that, however, his score for this question would be three elements rather than two, which is still below ten, and would not justify an award of more than 0 points. Turning to factor 7, Petitioner claims that the bus stop, bike node, and pedestrian seating area are shown on Section C, (site plan), and all are separate but related. He feels the overall design shows a repetition of trees in back and in front, which helps to unify the site with the previously existing trees, and ties the site together. His design shows the urban sculpture and the sound attenuation wall is softened by the use of planting. The snack shop, he claims, is linked, as required, and the crosswalks are shown by the use of specialty pavers. He also provides for pedestrian safety by the use of a pedestrian waiting area in the median. His use of an open grassed area to the north of the park indicates his effort to create open space as a positive extra design feature. In this factor, the possible scores range from 0 for no elements considered to a 5 for five elements considered. Here, Petitioner was awarded a 4 for recognizing four elements, and he claims he should have been awarded a 5 since, in his estimation, he considered five elements. The question calls for consideration of seven elements. Petitioner was originally given credit for elements 1, 3, 4, and 5, but in the opinion of Mr. Oliver, he should not get credit for number 2, overall design, since there is no repeated size and shape and no sense of order to the environment. As to element 6, though the crosswalks are shown, safety is lacking. The crosswalk on the parkway goes to an island and then continues, and this is not good. Also, the East-West crosswalk is concurrent with the bike path. The design criteria for this problem called for safety of handicapped, and joint use creates a safety problem for this category of person. The bikes should be kept separate from the pedestrians. With regard to element 7, additional design features, none were included by the Petitioner. He did not add any additional features such as signs or lighting. Had he done so, he would have gotten credit, but open space, which Petitioner claims as an additional feature, is not considered significant. Taken together, the award of 4 appears appropriate. With regard to that factor described as "ordered and unified environment", this is a judgement call appropriately left to examiners with experience to make, even in the light of the minimum competence criterion. Open space, which Petitioner claims as an additional factor meriting extra credit, may enhance a design if it is, in fact, a design intent and not merely a left over. It appears here that the Petitioner had area left over, but since, in the opinion of Mr. Oliver, another grader might consider this open space as an additional factor, Petitioner should be given the benefit of the doubt and awarded credit. Therefore, he should receive one additional point, resulting in a score of 5 for this factor. Petitioner's design of factor 8, dealing with the bike node resulted in an award of 4 points, nine elements considered. He claims that the drinking fountain as called for in the third element was provided. It is located in the center area, however, rather than at the bike shop. His rationale was that it would be duplicative to provide a drinking fountain at the shop when water was already available there. He also claims that with regard to element 8, 64 linear feet of bench was provided and is located near the snack shop. In his opinion, this exceeds the amount required. Mr. Oliver, on the other hand, claims Petitioner's design solution was unusual. The program statement clearly defines the required elements, and number 2 is a bike node "to include a drinking fountain." Petitioner has provided two bike areas. The linkage to the snack shop also calls for a drinking fountain. Therefore, when Petitioner put his fountain at the small bike node rather than at the larger bike node in conjunction with the drench shower and other items, he did not conform to the dictates of the program statement. Had he put a second fountain in, providing one at each place, he would have gotten full credit. With regard to the benches with backs, the program element clearly shows benches with backs should be in the major park area and the ones utilized by the Petitioner are not properly labeled. Consequently, he should get no additional credit. It is so found. Factor 10 deals with the functional relationships and operational considerations of the pedestrian sitting area and the sculpture location. Petitioner contests the failure to give him credit for the third of the elements involved, dealing with 100 square feet of seat wall or slab bench. He contends that his design provides the required seating by providing a terraced wall. The benches are labeled, and the wall provides the back, he claims. Here, he was given credit for four elements and was awarded 2 points. If he were to get credit for the additional element contested, his score would be raised to 3 points. Mr. Oliver, however, disagrees with Petitioner's position, and claims Petitioner has a label which says "seat wall benches" but his design shows no way of differentiating between the 64 linear feet of backed benches and the 100 square feet of slab wall bench. Therefore, according to Oliver, Petitioner can get credit for one, but not both. Petitioner did not give definitives for the size of the benches. Though the linear measurement is provided, the depth is not and it is, therefore, impossible to arrive at a square foot figure so as to determine whether Petitioner's design meets the requirements. Petitioner disagrees, differentiating between "benches" and "seat wall benches." The former, he claims, when scaled, shows 64 linear feet. The latter, when scaled, would appear to provide more than the required 100 square feet, but, according to Mr. Oliver, "benches" are depicted on only two sides of two planters which measures out to 40 linear feet, and, in addition, these "benches" do not show, "with back." The additional area near the sculpture, while looking like a bench is not so labeled, and the examination grade cannot be based on supposition. The candidate must label his item or put a notation on his drawing which defines the nature of the various elements. Here, therefore, it is clear that Petitioner's depiction is not sufficient to justify additional credit beyond that which was awarded. Factor 11 deals with environmental factors. On grading, Petitioner was awarded 1 point for four elements considered. He was denied credit for elements 1, 2, 3, 5, 6, 7, and 9. He asserts that his plan calls for 50% of the plaza to be shaded by canopy trees; he utilized mass tree planting but tried to keep the sculpture open to view; he used various plant materials in the form of annuals to direct attention toward the sculpture and around the snack shop; and used the same, plus a repetition of tree grates in the plaza to direct movement. He claims also that with regard to the wind, the wall will block it, and the use of the wall is enhanced by the use of a repetition of trees to block off the cold wind while nonetheless opening the area to the cooling summer breezes. Mr. Oliver disputes Petitioner's claim as to shade, indicating that it is not shown on Petitioner's depiction. The eastern and southern parts of the paved area are open to the sun, though the western part is covered. The sculpture would be more attractive, he feels, with a backdrop, and Petitioner's use of trees does not serve as such a device. The plant materials serve to break up the paved area in only two places, and this does not serve to separate the uses of that area. Petitioner appears to have no plan to show that the trees are used to define spaces, nor do they appear, as utilized by Petitioner, to direct movement. The sculpture does this, but it is not a plant. With regard to winds, in Florida, southern and southeast winds predominate. Petitioner has plants in the southwest quadrant but not in the southeast where the intersection is. The annual plants utilized by Petitioner are both colorful and fragrant. Petitioner described them only as annuals, but the program statement calls for annuals plus colorful and fragrant planting. Here Petitioner received credit for annuals but cannot receive double credit for their use when fragrant and colorful are also required. Petitioner has not shown this rationale to be improper. Turning to question 3B, dealing with planting around an apartment complex, on Factor 2, Petitioner was given credit for five considerations which awards 2 points. He initially contested six considerations of those remaining, but at hearing conceded the Board's grading was right in two of those, leaving a total of four in dispute. Here, there is a requirement for the candidate to landscape a residential site on which fifteen two bedroom townhouses will be grouped. Factors for consideration include common parking and open space and a need for outdoor living areas, and the candidate is advised that the developer wants to have the site functionally and attractively planted considering environmental and cultural/visual programs. Factor 2 deals with cultural/visual considerations and sub factor 2 requires screening of parking lots from one of the adjoining streets. Here, Petitioner has installed a line of oak trees which, he contends, provides an ample screen, but overlooks the fact that branches beginning 6 to 8 feet above ground are not going to provide much screening at ground level. Entrance planning at the intersecting street makes, he asserts, a pleasing announcement. The dumpster, he claims, is appropriately screened by plants all around, and the hard lines of buildings, he believes, are softened by the use of shrubbery and plant material. According to Mr. Oliver, however, there appears to be, notwithstanding Petitioner's claim, no appropriate entrance planting, - only oak and viburnum, and he believes Petitioner should have copied the entrance to the parking lot which has a more attractive mixture of plants. As accomplished by Petitioner, there is no "announcement" as called for by the examination standards. With regard to the dumpster, eight viburnum bushes on three sides is insufficiently described. No size is shown though a screening from visual as well as odor contamination is called for. These plants will not screen from view from second floor windows, notwithstanding Petitioner's claim that the plants may get as tall as 30 feet. The building corners need to be screened and not left as merely the joinder of two flat walls. While Petitioner appears to have appropriately softened some walls, he has not done so on all of the buildings. His solution insufficiently addresses the problem. Concerning factor 6, which deals with plant selections and locations, Petitioner was given 1 point for 1 condition met, but was given no credit for the remaining three conditions. The first of these deals with form and textural contrasts of plants to visually soften hard lines at the building entrance. According to Petitioner, the oak and the viburnum create such a contrast. Viburnum is large and the use of crepe myrtle, a medium texture plant, is noted, while the contrast of the textures is promoted by the use of coarse oaks. Not only does the texture of the plants contrast, Petitioner claims, but the colors contrast as well. He also contends that with regard to the spatial reinforcement of sitting areas with planting, his proposal creates shade for these sitting areas with a canopy over head, and it also allows one sitting area exposure to full sun. He claims that his proposed planting will unify the site in that the live oaks, which he uses to encompass the site, are uniform. He also proposes the use of other trees and repeated the use of some entrance materials in the courtyard. Mr. Oliver, on the other hand, claims that the western and northern buildings are devoid of any planting on at least one side. The front planting also appear to be in pockets and isolated, and there is no planting on the sides. One sitting area has no planting materials at all. If this is done on purpose, the examiner has no way to know that. Accepting Petitioner's premise, however, Mr. Oliver noted there are plants which would allow sun but still provide color and design. He further asserts that, with regard to unification, there is some repetition, but the north and east sections of the site are not addressed at all, and no planting is proposed in those areas whatever. The examination requires that the total site be addressed, not just a portion thereof. While the terms used in landscape architecture are subject to interpretation, there are certain basics which are not. These include consistency and uniformity. There may be differences in approach to a problem, such as the softening or the reinforcing of a line, or the de-emphasis of a vertical line, but the basic problems are, nonetheless, subject to specific definition. If, as Petitioner claims, he intended to leave the north and east sides of the buildings in question 3B open for a favorable view, and assuming there are no windows on the northern portion of the eastern buildings and the eastern portion of the northern buildings, Mr. Oliver points out that Petitioner should have noted this on his plan which makes no mention of the intent of the candidate. Since the candidate's intent cannot be determined by other than what appears on the examination paper, here there was clearly a failure of communication which redounded to the Petitioner's detriment. Assuming that Petitioner were to be given credit for the several additional points referenced herein, he would still not have sufficient points to constitute a passing grade. As graded, Petitioner is approximately 15 points below a passing grade, and based on the analyses of the questions challenged, there is no indication that, even taken in the most liberal context, Petitioner's answers justify the award of more than 1 additional point.
Recommendation Based on the foregoing Findings of fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner, Thomas W. Hoddinott, be awarded one additional point for his answer to question 3 on the June, 1989 landscape architect examination, but that his challenge to the other points in issue be dismissed. RECOMMENDED this 27th day of July, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 27th day of July, 1990. COPIES FURNISHED: Robert B. Jurand, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Keith F. Roberts, Esquire Kinsey & Roberts 240 Plant Avenue, Suite B-308 Tampa, Florida 33606 Patricia Ard Executive Director Board of Landscape Architects 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth E. Easley, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
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
Findings Of Fact The Petitioner was an applicant for licensure as a landscape architect in the State of Florida, and he took the licensure examination on June 14th and 15th, 1982. The Petitioner passed one part of this examination, Landscape Architecture Design, with a score of 75, but he failed History of Landscape Architecture, Professional Practice, and Design Implementation. The only part of the exam the Petitioner challenges is Design Implementation for which he received a final grade of 73. His initial Score was 69, but after a review and reevaluation of his designs by the consultant, points were added to his score which brought it up to 73. A score of 75 is required in order to pass the examination. The landscape architecture examination is a national examination, developed and administered by CLARB, Council of Landscape Architectural Registration Boards. The Design Implementation section of the exam is approximately 50 percent of the examination, and is graded by a team of landscape architect experts who have been trained by CLARB in a one-day seminar regarding their responsibilities and evaluation standards. There is always a minimum of two evaluators for each examination. Candidates are identified only by a candidate number, which maintains their anonymity. CLARB utilizes a statistical process to measure the differences among evaluators to eliminate the very hard graders and the very easy ones. In order to arrive at a raw score, CLARB collects all of the examination grades from the entire nation and determines a median score. This is utilized to calculate a coefficient for each individual state that determines the value of each point. The Petitioner was graded on three separate drawings. These drawings were graded by the evaluators for the State of Florida and Petitioner was given a grade of 69. The Petitioner reviewed his examination and made objections to the score given on drawings 1 and 2. These drawings and the Scores given were reviewed by the consultant. addition, the consultant reviewed each one of the scoring items on all three drawings to ensure proper grading Professional judgment must be utilized in grading these examinations, because they are landscape architecture drawings; therefore, the evaluators are professional landscape architecture experts, as is the Department's consultant. The Petitioner's drawings did not meet the Standards set by CLARB for minimal competency in the area of landscape architecture. For example, he did not place elevation figures in proper places, he failed to indicate grades where they were poised to be indicated, he did not show proper contours, and he did not clearly preserve all trees as required by the examination guidelines. Certain grading criteria in the Design examination where cumulative, in that each level must have been completed before the next level could be attained. This resulted in low grades for the Petitioner on some of the criteria. The Petitioner's drawings showed a lack of minimal competency, in that he was not clear and precise in the location of grades and contours, and left vague areas that could be misinterpreted by contractors or surveyors. The Petitioner's testimony consisted largely in going over the parts of the drawings in question, and pointing out areas where he contended more credit should have been given. However, insufficient real evidence, as opposed to the opinion of the Petitioner, was presented to support a finding of fact that his examination score should be upgraded more than was already done. The Petitioner's expert witness had been the Petitioner's employer for two years and, although he supported the Petitioner's contentions that the score on his drawings should be upgraded, the Petitioner's expert had no prior experience in the grading of examinations. Thus, his conclusions were unpersuasive, and have not been found as facts.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of law, it is RECOMMENDED that the application of Augustus A. Perna, Jr., for licensure as a landscape architect be denied, based on his failure to achieve a passing grade on the June, 1982, examination. THIS RECOMMENDED ORDER entered on this 27th day of September, 1983, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27 day of September, 1983. COPIES FURNISHED: Augustus A. Perna 6850 S. W. 40th Street Miami, Florida 33155 Drucilla E. Bell, Esquire 130 North Monroe Street Tallahassee, Florida 32301 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Herbert Coons, Jr. Executive Director Department of Professional Regulation, Board of Landscape Architecture 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Petitioner, Joseph A. Kopec, was a candidate on the real estate salesman examination given on December 17, 1984 in Orlando, Florida. The test is administered by Respondent, Department of Professional Regulation, Division of Real Estate (Division), and requires a score of 75 to pass. Petitioner received a score of 73. The salesman's licensing examination is developed by Respondent and is based on reference books authorized and published by the Division. It contains 100 questions, each having a value of one point. As noted above, seventy five questions must be answered correctly in order to pass the examination. If a candidate wishes to review his examination after his test score is received, he may request a review session with a Division representative in Orlando. Kopec did so, and was given a copy of examination questions and the appropriate answers in order that he might compare the same with the answers which he gave on the test. After reviewing this material, he notified the Division that he wished to challenge questions 58, 62 and 71, and the grading procedures used on the examination. Thereafter, a validation committee comprised of an attorney, the Division education director, and the Division examination development specialist met and reviewed the three questions, found the Division's answers to be correct, and the grading procedures consistent with Division rules. Petitioner was so notified, thereby triggering this proceeding. Other than his own testimony, Petitioner offered no evidence to show that his answers to the above questions were the most correct. At hearing he conceded that his answer to question 58 was incorrect leaving only two questions under challenge. Uncontroverted expert testimony clearly established that Petitioner's answers to the two remaining questions were incorrect, that the challenged questions were drawn from the authorized reference books, and were not "unclear" or "ambiguous" in any respect. Moreover, the procedures used to grade the examination were consonant with agency rules and instructions on the test booklet.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that no change be made to Petitioner's grade on the real estate salesman examination. DONE and ORDERED this 23rd day of July, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904)488- 9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1985. COPIES FURNISHED: Mr. Joseph A. Kopec 1107 Live Oak New Smyrna Beach, FL 32069 H. Reynolds Sampson, Esq. 130 N. Monroe St. Tallahassee, FL 32301
The Issue The issues for determination are whether, as alleged in the Amended Administrative Complaint, Walter L. Moyer, violated Section 472.033(1)(g) and (h) F.S. and Rule 21 HH-2.01(3) by performing a land survey in a negligent or incompetent manner, without due care and without due regard for acceptable professional standards, and violated Section 472.033(1)(e), (g) and (h) F.S., and Rule 21HH- 2.01(3) and (5) FAC, by providing a false or deliberately inaccurate survey sketch to a client on two separate occasions.
Findings Of Fact Walter L. Moyer has been licensed by the State of Florida as a registered surveyor from approximately August 1977 until present, and holds license number LS 0002828. His address for license purposes is Palm Bay, Florida, in Brevard County. His practice as a surveyor has been primarily in construction-related surveys and lot surveys, with very few parcel surveys. THE CHILCOTT SURVEY (COUNT I) In June 1984, Charles and Robin Chilcott purchased property on Grant Road, in Brevard County, consisting of approximately 1.44 acres of undeveloped land. The Chilcotts acquired the parcel with the intent to construct a home and keep their horses. Shortly after purchase, the Chilcotts retained Moyer to prepare a boundary survey of the parcel. The cost of the survey was $315.00 including $7.50 extra cost for two concrete monuments, rather than iron rods, at the front corners, as requested by the Chilcotts. The survey was performed on July 27, 1984, and Moyer was paid. He furnished the Chilcotts several sketches of survey which he had signed and sealed. In 1985, the Chilcotts hired a contractor, Casey Jones, and commenced building their house. At the request of Casey Jones, Moyer prepared both the foundation and final surveys. These two surveys were added to the boundary survey on September 26, 1985, and November 23, 1985, respectively. At the time that the field work on the foundation and final survey was done, Moyer detected no problems with the monumentation he had initially set in the boundary survey. He did not see any evidence that the monuments had been disturbed. The final survey shows the house to be 17.35 feet inside the east lot line. The Chilcotts wanted at least that distance because the area is zoned agricultural and they did not want the neighbor's livestock close to the house. They also understood that the county required a minimum 10-foot set-back. In connection with the construction of their home, and in reliance upon Moyer's survey identifying their property's boundary, the Chilcotts installed a well and a fence and had approximately 800 feet of sod planted along the east boundary. The Chilcotts have since learned that those improvements are not on their property and that their house is, in fact, only 7.25 feet from the lot line. In May, 1986, David Rothery, a Florida licensed land surveyor, performed a boundary survey of the Donald Waterbury parcel adjacent to and just east of Chilcott's land on Grant Road. Rothery checked and double-checked his field measurements and still found a ten foot discrepancy in the placement of the monuments on the eastern corners of the Chilcott parcel. Those monuments were ten feet too far to the east and were, therefore, placed ten feet within the Waterbury boundaries. He did not observe any indication that the monuments had been moved, and when he placed his corners for the proper boundaries, he found no evidence that monuments had ever been there before. As required, the monuments placed by Moyer had his identification on them. Rothery put a dotted line on his survey with the notation, "Apparent survey error on adjoining property by Walter Moyer Land Surveying". Rothery also called Moyer and told him about the discrepancy. On the morning of May 10, 1986, Moyer went back out to the Chilcott property and discovered that his monuments were ten feet too far to the east. He was in the process of moving them when he was confronted by Charles Chilcott. He told Chilcott that an error was made, that he "dropped ten feet". There was some discussion about possible remedies such as paying for the well and fence to be moved or buying the ten feet from Waterbury. Chilcott did not let Moyer finish moving the monuments. That night, Chilcott, who had never met Moyer before, but had only communicated by phone or in writing, called Moyer's house and confirmed that it was the same person he had seen moving the monuments. That was the last time Chilcott spoke with Moyer. Chilcott called Moyer's house several times over the following months, but always reached Mrs. Moyer and his phone calls were not returned. Moyer did contact Waterbury about purchasing the ten foot strip. Waterbury was concerned about how this would affect his eventual ability to build on his lot and refused to sell. Waterbury is not pressing the Chilcotts about their encroachments; he simply expects to have the matter resolved sometime in the future. By a letter dated 8/18/86, the Chilcotts requested damages of $2,500.00 from Moyer, including an estimate of costs to move the well, fence and a power pole and to replace sod. On September 13, 1986, another letter from Chilcott to Moyer listed the same plus additional damages, for a total demand of $4,025.00. In a letter to Chilcott dated August 27, 1987, Moyer offered to pay the application fee to seek a variance from the setback requirement and offered to provide a final survey and half the cost of moving the well. The letter denied that the problem was Moyer's fault and said that Moyer believes that the markers were moved between the date the survey was completed and the date of the foundation. The Chilcotts rejected that offer. No evidence in this proceeding supports Moyer's contention that the Chilcotts or someone else moved the monuments he originally set in 1984. The evidence does establish a strong circumstantial basis for finding that the monuments were not moved, but were incorrectly placed by Moyer at the time that the boundary survey was completed. Setting the monuments properly is an essential component of conducting a boundary survey. Moreover, when a subsequent final survey is done, it is the duty of the surveyor to assure that the original monuments have not been disturbed during construction and site work by a contractor. Assuming that Moyer is correct in his contention that the monuments were moved after they were set by him, but before the foundation was placed, it was his duty to discover that fact. He did not, since his final survey shows that the house is 17.35 feet from the boundary, whereas the house is, in fact, approximately seven feet from the adjoining property. Except when witness monuments are used, as when a tree or other obstruction sits on a boundary corner, it is a violation of standard surveying practice to place a monument other than where it is shown on the survey drawing. In this instance, the drawing is accurate; as described in the Chilcott deed, the northeast corner of their property is 600 feet from the section corner. There was no need for witness monuments here; yet the east boundary monuments are ten feet off and are 590 feet from the section corner. There is no overlap in the legal descriptions of the Waterbury and Chilcott properties to account for the overlap in monuments discovered by David Rothery, the Waterbury surveyor. Surveying is a system of checking measurements. Both human and equipment errors in the profession are neither rare nor entirely common. Even the most up-to-date electronic equipment is subject to discrepancies. Checking and rechecking field measurements helps alleviate errors. The minimum technical standards developed by and for the profession are intended to reduce errors, although it is not clear that slavish adherence to those principles will absolutely prevent any possibility of error. When errors do occur, the standard of the profession is to work with the client to resolve the problem. In some cases, this may mean the purchase of the client's property or adjoining property if the party is willing to sell. Moyer's limited offers do not meet the established standards of the profession. THE BURGOON-BERGER SURVEYS COUNTS II AND III On August 21, 1986, Moyer signed and sealed a survey sketch of Lot 22, Block 2245, Port Malabar, Unit 44, in Brevard County Florida for Burgoon-Berger Construction Co. The survey of Lot 22 showed the drawing of an improvement within the boundaries of the lot with a notation, "FOUNDATION FF ELEV 25.86." Next to the date on the survey is the abbreviation, "FND". The survey was submitted to the Palm Bay Building Department on August 26, 1986, the day before the pre-slab inspection. A pre-slab inspection is done before the slab is poured; therefore, at the time the survey was signed and sealed, the concrete slab had not yet been poured. On October 20, 1986, Moyer prepared a sketch of survey of Lot 7, Block 1054, Port Malabar Unit 20, in Brevard County, Florida for Burgoon-Berger Construction Co. The survey sketch indicated an improvement within the boundaries of the lot, with the notation, "FOUNDATION FF ELEV 26.87". Next to the date on the survey is the notation "FND". The survey was submitted to the City of Palm Bay on October 28, 1986. The pre-slab inspection was done by the City on October 22, 1986. Again, the survey was signed and sealed before the slab was actually poured. The notation, "FOUNDATION FF ELEV", is commonly understood to mean "foundation, finished floor elevation". "FND" is commonly understood to mean "foundation". Moyer, himself, has used both notations to signify those common usages. Foundation is generally accepted in the land surveying profession to mean something permanent and constructed, like a concrete slab, not bust the ground or wooden form boards used to guide the pouring of the slab. A survey which depicts an improvement with the note, "FOUNDATION FF ELEV", when the floor has not been finished misrepresents the status of the construction of that project. Reviewing personnel at the Palm Bay Building Department rejected the surveys and alerted the City's Flood Plain Administrator. That individual, Maria Parkhurst, reported the incidents to the Department of Professional Regulation. Lots 22 and 7 are both in the flood plain and slab elevation is significant, as the City must assure that federal maximum elevation requirements are met. The City requires the submission of surveys containing slab elevation data. Banks also rely on foundation surveys submitted by contractors in order to determine the state of construction before the release of a foundation draw. That is, before the contractor is entitled to partial payment for his work, the bank needs to know if the work has been done. Both Moyer and his client, Bergoon-Berger, intended the notation in these cases to mean "finished form", not "finished floor". Burgoon-Berger had Moyer perform a survey after the wooden form boards were constructed, but before the concrete slab was poured, in order to assure that the house was placed properly on the lot. The survey was somehow submitted prematurely to the city, whereas because Moyer and his client intended that the poured slab be re-surveyed before the sketch was submitted. When the survey for Lot 7 was resubmitted to the City on October 31, 1986, the slab had been poured and, while the elevation remained the same, the size of the fireplace foundation was slightly smaller. The notation, "FOUNDATION FF ELEV" remained the same, with nothing on the face of the survey sketch to indicate that this later version was the finished floor, rather than the finished form. Moyer no longer uses these abbreviations. A survey is not valid until it is signed and sealed, but once it is signed and sealed, it signifies to the client and to the public at large that the information provided therein is true and accurate. The standard of professional land survey practice dictates that abbreviations which are not commonly accepted should be explained on the face of the drawing. The professional standards also dictate that even if a client asks for certain information on a survey, in anticipation that other third parties might rely on the survey the professional should either refuse to indicate improvements that do not exist yet or indicate unambiguously that the improvements are intended, but still under construction. Notwithstanding Bergoon-Berger's and Moyer's intentions with regard to the two surveys at issue, Moyer failed to meet professional standards when he signed and sealed those surveys and released them to his client.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a final Order be issued finding Respondent guilty of Counts I, II and III of the Amended Administrative Complaint and placing him on probation for a period of two years, under such conditions as the Board may deem appropriate, including, but not limited to the participation in continuing professional education courses and the pursuit of a reasonable resolution to the Chilcott's boundary problems arising from the Respondent's negligence in performing their survey. DONE and RECOMMENDED this 3rd day of December, 1987 in Tallahassee, Florida. MARY CLARK 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 3rd day of December, 1987. APPENDIX The following constitute my specific rulings on the parties' proposed findings of fact. Petitioner (Count I) Adopted in Paragraph 1. Adopted in Paragraph 2. 3-4. Adopted in Paragraph 3. Incorporated in Part in Paragraph 1., as to the limitation of experience, otherwise rejected as immaterial. Rejected as immaterial. Adopted in Paragraph 3. Adopted in part in Paragraph 3, otherwise rejected as unnecessary. 9-10. Rejected as unnecessary. Adopted in Paragraph 12. Rejected as unnecessary. Adopted in Paragraph 4. 14-18. Adopted in Paragraph 3 and 4. Adopted in Paragraph 11. Adopted in Paragraph 4. Adopted in Paragraph 5. Adopted in Paragraph 11. 23-28. Adopted in Paragraph 7. Rejected as unnecessary. Adopted in Paragraph 7. Adopted in part in Paragraph 8, however the accurate date is May 10, 1986, and the evidence is inconclusive as to whether Moyer spoke to either of the Chilcotts before coming back. This fact is not material. 32-33. Adopted in Paragraph 8. 34. Rejected as cumulative and unnecessary. 35-37. Adopted in substance in Paragraph 8. Rejected as cumulative and unnecessary. Adopted in Paragraph 9. Adopted in part in Paragraph 9, otherwise rejected as unsubstantiated by competent evidence and immaterial. Adopted in Paragraph 6. 42-43. Rejected as cumulative. 44. Adopted in substance in Paragraph 10. 45-47. Rejected as cumulative. 48-49. Adopted in Paragraph 12. 50-51. Rejected as cumulative and unnecessary. Adopted in Paragraph 13. Rejected as cumulative. 54-55. Adopted in Paragraph 14. (Counts II and III) Adopted in Paragraph 1. Adopted in Paragraph 15. Adopted in Paragraph 16. 4-6. Adopted in Paragraph 17. Adopted in Paragraph 20. Adopted in Paragraph 21. Rejected as unnecessary. Adopted in Paragraph 18. Adopted in Paragraph 25. Adopted in Paragraph 18. Rejected as cumulative. Adopted in substance in Paragraph 25. Rejected as unnecessary. Adopted in Paragraph 23. Rejected as unnecessary. Adopted in Paragraph 25. Respondent Adopted in Paragraph 1. 2-5. Addressed in Background. Adopted in Paragraph 2. Adopted in Paragraph 3. 8-11. Rejected as immaterial. 12-13. Adopted in Paragraph 4. Adopted in Paragraph 5. Adopted in Paragraph 7. Adopted in part in Paragraph 7. Adopted in Paragraph 7. Rejected as contrary to the weight of evidence, except for the fact that the Chilcott house is 7 feet from the boundary. That fact is adopted in Paragraph 6. 19-20. Adopted in substance in Paragraph 8. Adopted in Paragraphs 9, 10, and 14. Adopted in Paragraph 10. Rejected, except as adopted in Paragraph 10. 24-25. Rejected as unnecessary. Adopted in Paragraph 11. Adopted in part in Paragraph 14, otherwise rejected as unsupported by the weight of evidence. Adopted in substance in Paragraph 13. Rejected as immaterial. While the boundary depiction is accurate, the placement of the house is in error on the final and foundation surveys and, of course, the markers are erroneously set. 30-33. Addressed in Background. 34. Adopted in Paragraphs 15 and 17. 35-36. Adopted in part in Paragraph 22, otherwise rejected as contrary to the weight of evidence. 37-38. Rejected as immaterial. 39. Adopted in Paragraphs 19 and 22. 40-44. Rejected as immaterial. COPIES FURNISHED: DAVID R. TERRY, ESQUIRE DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 JAMES P. BEADLE, ESQUIRE 5205 BABCOCK STREET N. E. PALM BAY, FLORIDA 32905 ALLEN R. SMITH, JR., EXECUTIVE DIRECTOR BOARD OF PROFESSIONAL LAND SURVEYORS DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 TOM GALLAGHER, SECRETARY DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 WILLIAM O'NEIL, ESQUIRE GENERAL COUNSEL DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750
The Issue The issue is whether a Sarasota County plan amendment adopted by Ordinance No. 2001-76 on July 10, 2002, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background The County's original Plan, known as Apoxsee,2 was adopted in 1981. In 1989, the County adopted a revised and updated version of that Plan. The current Plan was adopted in 1997 and is based on an Evaluation and Appraisal Report (EAR) approved by the County on February 20, 1996. After a lengthy process which began several years earlier, included input from all segments of the community, and involved thousands of hours of community service, on February 28, 2002, the County submitted to the Department a package of amendments comprised of an overlay system (with associated goals, objectives, and policies) based on fifty- year projections of growth. The amendments were in response to Future Land Use Policy 4.7 which mandated the preparation of a year 2050 plan for areas east of Interstate 75, which had served as an urban growth boundary in the County since the mid-1970s. Through the overlays, the amendments generally established areas in the County for the location of villages, hamlets, greenways, and conservation subdivisions. On May 10, 2002, the Department issued its Objections, Recommendations, and Comments (ORC). In response to the ORC, on July 10, 2002, the County enacted Ordinance No. 2001-76, which included various changes to the earlier amendment package and generally established six geographic overlay areas in the County, called Resource Management Areas (RMAs), with associated goals, objectives, and policies in the Future Land Use Chapter. The RMAs include an Urban/Suburban RMA, an Economic Development RMA, a Rural Heritage/Estate RMA, a Village/Estate/Open Space RMA, a Greenway RMA, and an Agriculture/Reserve RMA. The amendments are more commonly known as Sarasota 2050. The revised amendment package was transmitted to the Department on July 24, 2002. On September 5, 2002, the Department issued its Notice of Intent to find the amendments in compliance. On September 26, 2002, Manasota-88, Compton, and Ayech (and four large landowners who subsequently voluntarily dismissed their Petitions) filed their Petitions challenging the new amendments. In their Pre-Hearing Stipulation, Manasota-88 and Compton contend that the amendments are not in compliance for the following reasons: vagueness and uncertainties of policies; an inconsistent, absent or flawed population demand and urban capacity allocation methodology; inconsistent planning time frames; overallocation of urban capacity; urban sprawl; failure to coordinate future land uses with planned, adequate and financially feasible facilities and services; failure to protect wetlands, wildlife and other natural resources; failure to meet requirements for multimodal and area-wide concurrency standards; failure to provide affordable housing; land use incompatibility of land uses and conditions; indefinite mixed uses and standards; lack of intergovernmental coordination; and inadequate opportunities for public participation the Amendment is internally inconsistent within itself and with other provisions of the Sarasota County Comprehensive Plan, is not supported by appropriate data and analysis and is inconsistent with the State Comprehensive Plan and the Strategic Regional Policy [P]lan of the Southwest Regional Planning Council. In the Pre-Hearing Stipulation, Ayech has relied on the same grounds as Manasota-88 and Compton (except for the allegation that the amendments lack intergovernmental coordination). In addition, she has added an allegation that the amendments fail to adequately plan "for hurricane evacuation." The Parties The Department is the state planning agency responsible for review and approval of comprehensive plans and amendments. The County is a political subdivision responsible for adopting a comprehensive plan and amendments thereto. The County adopted the amendments being challenged here. At the commencement of the hearing, the parties stipulated that Petitioners either reside, own property, or own or operate a business within the County, and that they made comments, objections, or recommendations to the County prior to the adoption of the Amendment. These stipulated facts establish that Petitioners are affected persons within the meaning of Section 163.3184(1)(a), Florida Statutes, and have standing to initiate this action. Given the above stipulation, there was no testimony presented by Manasota-88 describing that organization's activities or purpose, or by Compton individually. As to Ayech, however, she is a resident of the County who lives on a 5-acre farm in the "Old Miakka" area east of Interstate 75, zoned OUE, which is designated as a rural classification under the Plan. The activities on her farm are regulated through County zoning ordinances. The Amendment Generally Under the current Plan, the County uses a number of growth management strategies including, but not limited to: an urban services area (USA) boundary; a minimum residential capacity "trigger" mechanism, that is, a minimum dwelling unit capacity of 133 percent of housing demand projected for a ten- year plan period following each EAR, to determine when the USA boundary may need to be moved; a future urban area; and concurrency requirements. Outside the USA, development is generally limited to no greater than one residential unit per five acres in rural designated areas or one unit per two acres in semi-rural areas. The current Plan also includes a Capital Improvement Element incorporating a five-year and a twenty-plus-year planning period. The five-year list of infrastructure projects is costed and prioritized. In the twenty-plus-year list, infrastructure projects are listed in alphabetical order by type of facility and are not costed or prioritized. The construction of infrastructure projects is implemented through an annual Capital Improvement Program (CIP), with projects generally being moved between the twenty-plus-year time frame and the five-year time frame and then into the CIP. All of the County's future urban capacity outside the USA and the majority of capacity remaining inside the USA are in the southern part of the County (south of Preymore Street extended, and south of Sarasota Square Mall). As the northern part of the County's urban capacity nears buildout, the County has experienced considerable market pressure to create more urban designated land in the northern part of the County and/or to convert undeveloped rural land into large lot, ranchette subdivisions. Because of the foregoing conditions, and the requirement in Future Land Use Policy 4.1.7 that it prepare a year 2050 plan for areas east of Interstate 75, the County began seeking ways to encourage what it considers to be a "more livable, sustainable form of development." This led to the adoption of Sarasota 2050. As noted above, Sarasota 2050 consists of six geographic overlay areas in the Future Land Use Map (FLUM), called RMAs, with associated goals, objectives, and policies. As described in the Plan, the purpose and objective of the Amendment is as follows: The Sarasota County Resource Management Area (RMA) Goal, Objectives and Policies are designed as a supplement to the Future Land Use Chapter of Apoxsee. The RMAs function as an overlay to the adopted Future Land Use Map and do not affect any rights of property owners to develop their property as permitted under the Comprehensive Plan, the Zoning Ordinance or the Land Development Regulations of Sarasota County or previously approved development orders; provided, however, that Policy TDR 2.2 shall apply to land located within the Rural/Heritage Estate, Village/ Open Space, Greenway and Agricultural Reserve RMAs where an increase in residential density is sought. To accomplish this purpose and objective, the RMAs and their associated policies are expressly designed to preserve and strengthen existing communities; provide for a variety of land uses and lifestyles to support diverse ages, incomes, and family sizes; preserve environmental systems; direct population growth away from floodplains; avoid urban sprawl; reduce automobile trips; create efficiency in planning and provision of infrastructure; provide County central utilities; conserve water and energy; allocate development costs appropriately; preserve rural character, including opportunities for agriculture; and balance jobs and housing. The Amendment creates an optional, alternative land use policy program in the Plan. To take advantage of the benefits and incentives of this alternative program, a property owner must be bound by the terms and conditions in the goal, objectives, and policies. Policy RMA1.1 explains it this way: The additional development opportunities afforded by the Sarasota 2050 Resource Management Area Goal, Objectives and Policies are provided on the condition that they are implemented and can be enforced as an entire package. For example, the densities and intensities of land use made available by the Sarasota 2050 Resource Management Area Goal, Objectives and Policies may not be approved for use outside the policy framework and implementing regulatory framework set forth herein. Policy RMA1.3 expresses the Amendment’s optional, alternative relationship to the existing Plan as follows: The Sarasota 2050 Resource Management Area Goal, Objectives and Policies shall not affect the existing rights of property owners to develop their property as permitted under the Comprehensive Plan, the Zoning Ordinance, the Land Development Regulations or previously approved development orders; provided, however, that TDR 2.2 [relating to transfer of development rights] shall apply to land located within the Rural Heritage/ Estate, Village/Open Space, Greenway and Agricultural Reserve RMAs where an increase in residential density is sought. If a property owner chooses to take advantage of the incentives provided by the Sarasota 2050 RMA, then to the extent that there may be a conflict between the Sarasota 2050 Resource Management Area Goal, Objectives and Policies and the other Goal[s], Objectives and Policies of APOXSEE, the Sarasota 2050 Resource Management Area Goal, Objectives and Policies shall take precedence. The other Goals, Objectives and Policies of APOXSEE including, but not limited to, those which relate to concurrency management and environmental protection shall continue to be effective after the adoption of these Resource Management Area Goal, Objectives and Policies. Therefore, if a landowner chooses to pursue the alternative development opportunities, he essentially forfeits his current development rights and accepts the terms and conditions of Sarasota 2050. The RMAs The RMAs were drawn in a series of overlays to the FLUM based on the unique characteristics of different areas of the County, and they result in apportioning the entire County into six RMAs. They are designed to identify, maintain, and enhance the diversity of urban and rural land uses in the unincorporated areas of the County. The Urban/Suburban RMA is an overlay of the USA and is comparable to the growth and development pattern defined by the Plan. Policies for this RMA call for neighborhood planning, providing resources for infrastructure, and encouraging development (or urban infill) in a portion of the Future USA identified in the Amendment as the Settlement Area. The Economic Development RMA consists of land inside the USA that is located along existing commercial corridors and at the interchanges of Interstate 75. In this RMA, the policies in the Amendment provide for facilitating economic development and redevelopment by preparing critical area plans, encouraging mixed uses, providing for multi-modal transportation opportunities, creating land development regulations to encourage economic development, and providing more innovative level of service standards that are in accordance with Chapter 163, Florida Statutes. The Greenway RMA consists of lands outside the USA that are of special environmental value or are important for environmental connectivity. Generally, the Greenway RMA is comprised of public lands, rivers and connected wetlands, existing preservation lands, ecologically valuable lands adjacent to the Myakka River system, named creeks and flow- ways and wetlands connected to such creeks and flow-ways, lands listed as environmentally sensitive under the County’s Environmentally Sensitive Lands Priority Protection Program (ESLPPP), and lands deemed to be of high ecological value. This RMA is accompanied by a map depicting the general location of the features sought to be protected. The Rural/Heritage Estate Resource Management RMA consists of lands outside the USA that are presently rural and very low density residential in character and development and are planned to remain in that form. In other words, the RMA's focus is on protecting the existing rural character of this area. To accomplish this objective, and to discourage inefficient use of land in the area, the Amendment contains policies that will create and implement neighborhood plans focusing on strategies and measures to preserve the historic rural character of the RMA. It also provides incentives to encourage the protection of agricultural uses and natural resources through measures such as the creation of land development regulations for a Conservation Subdivision form of use and development in the area. The Agricultural Reserve RMA is made up of the existing agricultural areas in the eastern and southeastern portions of the County. The Amendment contains policies that call for the amendment of the County’s Zoning and Land Development Regulations to support, preserve, protect, and encourage agricultural and ranching uses and activities in the area. Finally, the Village/Open Space RMA is the centerpiece of the RMA program. It consists of land outside the USA that is planned to be the location of mixed-use developments called Villages and Hamlets. The Village/Open Space RMA is primarily the area where the increment of growth and development associated with the longer, 2050 planning horizon will be accommodated. Villages and Hamlets are form-specific, using connected neighborhoods as basic structural units that form compact, mixed-use, master-planned communities. Neighborhoods provide for a broad range and variety of housing types to accommodate a wide range of family sizes and incomes. Neighborhoods are characterized by a fully connected system of streets and roads that encourage alternative means of transportation such as walking, bicycle, or transit. Permanently dedicated open space is also an important element of the neighborhood form. Neighborhoods are to be designed so that a majority of the housing units are within walking distance of a Neighborhood Center and are collectively served by Village Centers. Village Centers are characterized by being internally designed to the surrounding neighborhoods and provide mixed uses. They are designed specifically to serve the daily and weekly retail, office, civic, and governmental use and service needs of the residents of the Village. Densities and intensities in Village Centers are higher than in neighborhoods to achieve a critical mass capable of serving as the economic nucleus of the Village. Villages must be surrounded by large expanses of open space to protect the character of the rural landscape and to provide a noticeable separation between Villages and rural areas. Hamlets are intended to be designed as collections of rural homes and lots clustered together around crossroads that may include small-scale commercial developments with up to 20,000 square feet of space, as well as civic buildings or shared amenities. Each Hamlet is required to have a public/civic focal point, such as a public park. By clustering and focusing development and population in the Village and Hamlet forms, less land is needed to accommodate the projected population and more land is devoted to open space. The Village/Open Space RMA is an overlay and includes FLUM designations. According to the Amendment, the designations become effective if and when a development master plan for a Village or Hamlet is approved for the property. The Urban/Suburban, Agricultural Reserve, Rural Heritage/Estate, Greenway, and Economic Development RMAs are overlays only and do not include or affect FLUM designations. For these five RMAs, the FLUM designation controls land use, and any changes in use that could be made by using the overlay policies of the Amendment that are not consistent with the land's future land use designation would require a land use redesignation amendment to the Plan before such use could be allowed. Data and analysis in support of the amendment The County did an extensive collection and review of data in connection with the Amendment. In addition to its own data, data on wetlands, soils, habitats, water supplies, and drainage with the Southwest Florida Water Management District (District) and the Florida Fish and Wildlife Conservation Commission (FFWCC) were reviewed. Data from the BEBR were used in deriving population and housing demand forecasts for the 2050 planning period. Transportation system modeling was performed using data from the local Metropolitan Planning Agency (MPA). The MPA uses the Florida State Urban Transportation Model Structure (FSUTMS), which is commonly used throughout the State for transportation modeling and planning purposes. Expert technical assistance was also provided by various consulting firms, including the Urban Land Institute, Analytica, Zimmerman/Volk Associates, Inc., Urban Strategies, Inc., Duany-Plater-Zyberk, Glatting Jackson, Fishkind & Associates, Stansbury Resolutions by Design, and Kumpe & Associates. In addition, the Urban Land Institute prepared a comprehensive report on the benefits of moving towards new urbanist and smart growth forms east of Interstate 75 and a build-out 2050 planning horizon. Finally, topical reports were prepared on each of the RMAs, as well as on public participation, financial feasibility and fiscal neutrality, market analysis, and infrastructure analysis. In sum, the data gathered, analyzed, and used by the County were the best available data; the analyses were done in a professionally acceptable manner; and for reasons more fully explained below, the County reacted appropriately to such data. Petitioners' Objections Petitioners have raised a wide range of objections to the Amendment, including a lack of data and analyses to support many parts of the Amendment; flawed or professionally unacceptable population and housing projections; a lack of need; the encouragement of urban sprawl; a lack of coordination between the future land uses associated with the Amendment and the availability of capital facilities; a flawed transportation model; a lack of meaningful and predictable standards and guidelines; internal inconsistency; a failure to protect natural resources; a lack of economic feasibility and fiscal neutrality; and inadequate public participation and intergovernmental coordination. Use of a 50-year planning horizon Petitioners first contend that the Amendment is not in compliance because it has a fifty-year planning time frame rather than a five or ten-year time frame, and because it does not have the same time frame as the Plan itself. Section 163.3177(5)(a), Florida Statutes, provides that "[e]ach local government comprehensive plan must include at least two planning periods, one covering at least the first 5-year period occurring after the plan's adoption and one covering at least a 10-year period." See also Fla. Admin. Code R. 9J-5.005(4). However, nothing in the statute or rule prohibits a plan from containing more than two planning horizons, or for an amendment to add an additional fifty-year planning period. Therefore, the objection is without merit. Population and housing need projections For a fifty-year plan, the County had to undertake an independent analysis and projection of future population in the County. In doing so, the County extrapolated from BEBR medium range 2030 projections and calculated a need for 82,000 new homes over the 2050 period. Examining building permit trends over the prior ten years, the County calculated a high- end projection of 110,000 new homes. The County developed two sets of estimates since it is reasonable and appropriate to use more than one approach to produce a range of future projections. The County based its planning on the lower number, but also assessed water needs relative to the higher number. The data and sources used by the County in making the population and housing need projections are data and sources commonly used by local governments in making such projections. The County's expert demographer, Dr. Fishkind, independently evaluated the methodologies used by the County and pointed out that the projections came from the BEBR mid- range population projections for the County and that, over the years, these projections have been shown to be reliably accurate. The projections were then extended by linear extrapolation and converted to a housing demand in a series of steps which conformed with good planning practices. The projections were also double-checked by looking at the projected levels of building permits based on historical trends in the previous ten years' time. These two sets of calculations were fairly consistent given the lengthy time frame and the inherent difficulty in making long-range forecasts. Dr. Fishkind also found the extrapolation from 2030 to 2050 using a linear approach to be appropriate. This is because medium-term population projections are linear, and extrapolation under this approach is both reasonable and proper. Likewise, Dr. Fishkind concluded that comparing the projections to the projected level of building permits based on historical trends is also a reasonable and acceptable methodology and offers another perspective. Manasota-88's and Compton's expert demographer, Dr. Smith, disagreed that the County’s methodology was professionally acceptable and opined instead that the mid- range 2050 housing need was 76,800 units. He evidently accepted the BEBR mid-range extrapolation done by the County for the year-round resident population of the County through 2050, but disagreed on the number of people associated with the functional population of the County. To calculate the actual number of persons in the County and the number of homes necessary to accommodate those persons, it is necessary to add the persons who reside in the County year-round (the "resident population") to the number of people who live in the County for only a portion of the year (the "seasonal population"). See Fla. Admin. Code R. 9J- 5.005(2)(e)("The comprehensive plan shall be based on resident and seasonal population estimates and projections.") The BEBR projections are based on only the resident population. The County’s demographer assigned a 20 percent multiplier to the resident population to account for the seasonal population. This multiplier has been in the Plan for many years, and it has been used by the County (with the Department's approval) in calculating seasonal population for comprehensive planning purposes since at least 1982. Rather than use a 20 percent multiplier, Dr. Smith extrapolated the seasonal population trend between the 1990 census and the 2000 census and arrived at a different number for total county housing demand. Even so, based on the fifty- year time frame of the Amendment, the 2050 housing demand number estimated by Dr. Smith (76,800 units) is for all practical purposes identical to the number projected by the County (82,000). Indeed, Dr. Fishkind opined that there is no statistically significant difference between the County's and Dr. Smith's projections. Section 163.3177(6)(a), Florida Statutes, requires that "[t]he future land use plan shall be based upon surveys, studies, and data regarding the area, including the amount of land required to accommodate anticipated growth [and] the projected population of the area." The "need" issue is also a factor to be considered in an urban sprawl analysis. See Fla. Admin. Code R. 9J-5.006(5)(g)1. (urban sprawl may be present where a plan designates for development "uses in excess of demonstrated need"). There is no allocation ratio adopted by statute or rule by which all comprehensive plans are judged. The County's evidence established that the allocation ratio of housing supply to housing need associated with the best-case scenario, that is, a buildout of existing areas and the maximum possible number of units being approved in the Villages, was nearly 1:1. Adding the total number of remaining potential dwelling units in the County at the time of the Amendment, the total amount of potential supply for the 2050 period was 82,500 units. This ratio is more conservative than the ratios found in other comprehensive plans determined to be in compliance by the Department. In those plans, the ratios tend to be much greater than 1:1. Petitioners objected to the amount of allocation, but offered no independent allocation ratio that should have been followed. Instead, Manasota-88's and Compton's expert undertook an independent calculation of potential units which resulted in a number of units in excess of 100,000 for the next twenty years. However, the witness was not capable of recalling, defending, or explaining these calculations on cross-examination, and therefore they have been given very little weight. Moreover, the witness clearly did not factor the transfer of density units or the limitations associated with the transfer of such units required by the policies in the Amendment for assembling units in the Villages. Given these considerations, it is at least fairly debatable that Sarasota 2050 is based on relevant and appropriate population and housing need projections that were prepared in a professionally acceptable manner using professionally acceptable methodologies. Land use suitability Petitioners next contend that the identification of the RMAs is not based on adequate data and analyses of land use suitability. In this regard, Section 163.3177(6)(a), Florida Statutes, requires that future land use plans be based, in part, on surveys, studies, and data regarding "the character of undeveloped land." See also Fla. Admin. Code R. 9J-5.006(2), which sets forth the factors that are to be evaluated when formulating future land use designations. The Amendment was based upon a land use suitability analysis which considered soils, wetlands, vegetation, and archeological sites. There is appropriate data and analyses in the record related to such topics as "vegetation and wildlife," "wetlands," "soils," "floodplains," and "historical and archeological sites." The data were collected and analyzed in a professionally acceptable manner, and the identification of the RMAs reacts appropriately to that data and analyses. The County's evidence demonstrated that the locations chosen for the particular RMAs are appropriate both as to location and suitability for development. It is at least fairly debatable that the Amendment is supported by adequate data and analyses establishing land use suitability. Urban sprawl and need Petitioners further contend that the Amendment fails to discourage urban sprawl, as required by Florida Administrative Code Rule 9J-5.006(5), and that it is not supported by an appropriate demonstration of need. Need is, of course, a component of the overall goal of planning to avoid urban sprawl. The emerging development pattern in the northeast area of the County tends toward large-lot development. Here, the RMA concept offers a mixture of uses and requires an overall residential density range of three to six units per net developable Village acre, whereas most of the same residential areas of the County presently appear to have residential densities of one unit per five acres or one unit per ten acres. If the Villages (and Hamlets) are developed according to Plan, they will be a more desirable and useful tool to fight this large-lot land use pattern of current development and constitute an effective anti-urban sprawl alternative. Petitioners also allege that the Amendment will allow urban sprawl for essentially three reasons: first, there is no "need" for the RMA plan; second, there are insufficient guarantees that any future Village or Hamlet will actually be built as a Village or similar new urbanist-type development; and third, the Amendment will result in accelerated and unchecked growth in the County. The more persuasive evidence showed that none of these concerns are justified, or that the concerns are beyond fair debate. The Amendment is crafted with a level of detail to ensure that a specific new urbanist form of development occurs on land designated as Village/Open Space land use. (The "new urbanistic form" of development is characterized by walkable neighborhoods that contain a diversity of housing for a range of ages and family sizes; provide civic, commercial, and office opportunities; and facilitate open space and conservation of natural environments.) The compact, mixed-use land use pattern of the Villages and Hamlets is regarded as Urban Villages, a development form designed and recognized as a tool to combat urban sprawl. "New town" is defined in Florida Administrative Code Rule 9J-5.003(80) as follows: "New town" means a new urban activity center and community designated on the future land use map and located within a rural area or at the rural-urban fringe, clearly functionally distinct or geographically separated from existing urban areas and other new towns. A new town shall be of sufficient size, population and land use composition to support a variety of economic and social activities consistent with an urban designation. New towns shall include basic economic activities; all major land use categories, with the possible exception of agricultural and industrial; and a centrally provided full range of public facilities and services. A new town shall be based on a master development plan, and shall be bordered by land use designations which provide a clear distinction between the new town and surrounding land uses. . The Village/Open Space RMA is consistent with and furthers the concept embodied in this definition, that is, the creation of an efficient urban level of mixed-use development. Urban Villages referenced in the Rule are also a category and development form expressly recognized to combat urban sprawl. The Village/Open Space RMA policies include the types of land uses allowed, the percentage distribution among the mix of uses, and the density or intensity of each use. Villages must include a mix of uses, as well as a range of housing types capable of accommodating a broad range of family sizes and incomes. The non-residential uses in the Village, such as commercial, office, public/civic, educational, and recreational uses, must be capable of providing for most of the daily and weekly retail, office, civic, and governmental needs of the residents, and must be phased concurrently with the residential development of the Village. The policies set the minimum and maximum size for any Village development. Other policies establish standards for the minimum open space outside the developed area in the Village. The minimum density of a Village is three dwelling units per acre, the maximum density is six dwelling units per acre, and the target density is five dwelling units per acre. An adequate mix of non-residential uses must be phased with each phase or subphase of development. The maximum amount of commercial space in Neighborhood Centers is 20,000 square feet. Village Centers can be no more than 100 acres, the maximum amount of commercial space is 300,000 square feet, and the minimum size is 50,000 square feet. The Town Center may have between 150,000 and 425,000 square feet of gross leasable space. Villages must have sufficient amounts of non-residential space to satisfy the daily and weekly needs of the residents for such uses. Percentage minimums and maximums for the land area associated with uses in Village Centers and the Town Center are also expressed in the policies. Hamlets have a maximum density of one dwelling unit per acre and a minimum density of .4 dwelling unit per acre. The maximum amount of commercial space allowed in a Hamlet is 10,000 square feet. The number of potential dwelling units in the Village/Open Space RMA is limited to the total number of acres of land in the Village/Open Space and Greenway RMAs that are capable of transferring development rights. Calculations in the data and analyses submitted to the Department, as well as testimony at the hearing, set this number at 47,000-47,500 units once lands designated for public acquisition under the County’s ESLPPP are properly subtracted. To take advantage of the Village option and the allowable densities associated with Villages, property owners in the Village/Open Space RMA must assemble units above those allowed by the Plan's FLUM designation by acquiring and transferring development rights from the open space, the associated greenbelt and Greenway, the Village Master Plan, and other properties outside the Village. The means and strategy by which transfer sending and receiving areas are identified and density credits are acquired are specified in the Amendment. There are three village areas (South, Central, and North) in the Village/Open Space RMA, and the amendment limits the number of Villages that may be approved in each of the areas. In the South and Central Village areas, a second village cannot be approved for fifteen years after the first village is approved. The amount of village development in the South Village must also be phased to the construction of an interchange at Interstate 75 and Central Sarasota Parkway. In the North Village area, only one village may be approved. In addition, to further limit the amount and rate of approvals and development of Villages, village rezonings and master plans cannot be approved if the approval would cause the potential dwelling unit capacity for urban residential development within the unincorporated county to exceed 150 percent of the forecasted housing demand for the subsequent twenty-year period. To evaluate the housing demand for the subsequent twenty-year period, among other things, Policy VOS2.1(a)2. sets forth the following items to be considered in determining housing demand: Housing demand shall be calculated by the County and shall consider the medium range population projections of the University of Florida’s Bureau of Economic and Business Research for Sarasota County, projected growth in the Municipalities and residential building permit activity in the Municipalities and unincorporated County. Petitioners contend that Policy VOS2.1 is an illegal population methodology. However, the County established that the Policy merely sets forth factors to be considered and does not express a specific methodology. The County’s position is consistent with the language in the policy. Petitioners also contend that the policy is vague and ambiguous because the outcome of the application of the factors is not ordained (since weights are not assigned to each factor), and because building permit activity is not a valid or proper factor to consider in making housing demand projections. The evidence establishes, however, that the factors are all proper criteria to consider in making housing projections, and that a fixed assignment of weights for each item would be inappropriate. In fact, even though Manasota- 88's and Compton's demographer stated that building permit activity is not an appropriate factor to consider, he has written articles that state just the opposite. The County also established that Sumter County (in central Florida) had examined and used building permit activity in projecting population in connection with their comprehensive plan, and had done so after consulting with BEBR and receiving confirmation that this factor was appropriate. That building permit activity demonstrated that population projections and housing demand were higher in Sumter County than BEBR was projecting at the time, and that Sumter County’s own projections were more accurate than BEBR's projections. Petitioners essentially claim that the County should only use BEBR's medium range projections in calculating future housing needs. However, the evidence does not support this contention. Future housing need is determined by dividing future population by average household size. Because BEBR's medium population projections for a county include all municipalities in the county, they must always be modified to reflect the unincorporated county. Moreover, BEBR's projections are the result of a methodology that first extrapolates for counties, but then adjusts upward or downward to match the state population projection. A projection based on this medium range projection, but adjusted by local data, local information, and local trends, is a more accurate indicator of population, and therefore housing need, than simply the BEBR county-wide medium range projection. At the same time, future conditions are fluid rather than static, and the clear objective of Policy VOS2.1 is to project housing demand as accurately as possible. Assigning fixed weights to each factor would not account for changing conditions and data at particular points in time and would be more likely to lead to inaccurate projections. As specified in Policy VOS2.1, the factors can properly serve as checks or balances on the accuracy of the projections. Given that the clear intent of Policy VOS2.1 is to limit housing capacity and supply, accurately determining the housing demand is the object of the policy, and it is evident that the factors should be flexibly applied rather than fixed as to value, weight, or significance. There is also persuasive evidence that the RMA amendments can be reasonably expected to improve the Plan by providing an anti-sprawl alternative. Florida Administrative Code Rule 9J-5.006(5)(k) directly addresses this situation in the following manner: If a local government has in place a comprehensive plan found in compliance, the Department shall not find a plan amendment to be not in compliance on the issue of discouraging urban sprawl solely because of preexisting indicators if the amendment does not exacerbate existing indicators of urban sprawl within the jurisdiction. (emphasis added) Petitioners did not offer persuasive evidence to refute the fact that the RMAs would improve the existing development pattern in the County. While Petitioners alleged that the Amendment allows for the proliferation of urban sprawl in the form of low-density residential development, the evidence shows, for example, that the County's current development pattern in the USA has an overall residential density between two and three units per acre. The Rural Heritage/Estate and Agricultural Reserve RMAs may maintain or reduce the existing density found in the Plan by the transfer of development rights. The three to six dwelling units per net developable residential acre required for Village development in the Village/Open Space RMA, coupled with the Amendment's specific policies directing the location of higher density residential uses, affordable housing, and non- residential uses, provide meaningful and predictable standards for the development of an anti-sprawl land use form. They also provide a density of focused development that diminishes, rather than exacerbates, the existing potential for sprawl found in the Plan. In reaching his opinions on urban sprawl, Manasota- 88's and Compton's expert indicated that he only assessed the question of sprawl in light of the thirteen primary indicators of sprawl identified in Florida Administrative Code Rule 9J- 5.006(5)(g). Unlike that limited analysis, the County's and the Department's witnesses considered the sprawl question under all of the provisions of Chapter 163, Florida Statutes, and Florida Administrative Code Chapter 9J-5 and concluded that the Amendment did not violate the urban sprawl prohibition. As they correctly observed, there are other portions of the law that are critically relevant to the analysis of sprawl in the context of this Amendment. Urban villages described in Florida Administrative Code Rule 9J- 5.003(80) are a category and development form expressly designed to combat urban sprawl. In addition, Florida Administrative Code Rule 9J-5.006(5)(l) recognizes urban villages and new towns as two "innovative and flexible" ways in which comprehensive plans may discourage the proliferation of urban sprawl. The more persuasive evidence establishes that the Village form contained in the Amendment will discourage urban sprawl. The types and mix of land uses in the amendment are consistent with Florida Administrative Code Chapter 9J-5 and will serve to discourage urban sprawl. Therefore, it is at least fairly debatable that the Amendment does not exacerbate existing indicators of urban sprawl within the County and serves to discourage the proliferation of urban sprawl. It is also beyond fair debate that the Amendment describes an innovative and flexible planning and development strategy that is expressly encouraged and recognized by Section 163.3177(11), Florida Statutes, and Florida Administrative Code Rule 9J-5.006(5)(l) as a means to avoid and prevent sprawl. Natural resource protection and wetlands impacts Petitioners next allege that the Amendment fails to protect natural resources, as required by Florida Administrative Code Rules 9J-5.006(3)(b)4. and 9J-5.013(2)(b) and (3)(a) and (b). At a minimum, by providing for a Greenway area, clustering of development, large open space requirements, wildlife crossings, floodplain preservation and protection, greenbelts and buffers, transfers of development rights placing higher value on natural resources, best management practices, and the encouragement of development in the RMA pattern, the RMA plan creates a level of natural resource protection greater than the County’s existing Plan. Though Petitioners disagreed with the extent and breadth of the protections afforded by the Amendment, they could only point to one area where protections may not be as significant as in the Plan: wetland impacts in Villages where the Village Center is involved. On this issue, Policy VOS1.5 provides that: The County recognizes that prevention of urban sprawl and the creation of compact, mixed-use development support an important public purpose. Therefore, the approval of a Master Development Plan for a Village may permit impacts to wetlands within the Village Center itself only when it is determined that the proposed wetland impact is unavoidable to achieve this public purpose and only the minimum wetland impact is proposed. Such approval does not eliminate the need to comply with the other wetland mitigation requirements of the Environmental Technical Manual of the Land Development Regulations, including the requirement for suitable mitigation. The Board of County Commissioners will review such proposals on a case-by-case basis as part of the Master Development Plan review process. Contrary to Petitioners' claims, the Policy does not encourage wetland destruction. Impacts to wetlands with appropriate mitigation are allowed under this policy only when the impact is "unavoidable" and "the minimum impact is proposed." The term "unavoidable impact" is not an ambiguous term in the area of wetland regulation. It is not unbridled in the context of the policy, nor is it ambiguous when properly viewed in the context of the overriding concern of the amendment to "preserve environmental systems." The term "unavoidable impact" is used and has application and meaning in other wetland regulatory programs, such as the federal Clean Water Act and the regulations implementing that law. Regulations based on "unavoidable impacts," both in this policy as well as in the state and federal regulations, can be applied in a lawfully meaningful way. Considering the policies regarding environmental systems, habitats, wildlife, and their protection, especially when read in conjunction with the protections required in the Plan, the Amendment as a whole reacts appropriately to the data and can be expected to afford protection of natural resources. The Greenway RMA was based on data and analyses that generated a series of environmental resource overlays, that when completed, comprised the Greenway RMA. The overlays layered public lands, rivers and connected wetlands, preservation lands, ecologically valuable lands associated with the Myakka River system, named creeks and flow-ways, wetlands connected to such creeks and flow-ways, lands listed as environmentally sensitive under the County’s ESLPPP, lands deemed to be of high ecological value, and appropriate connections. The evidence establishes that the staff and consultants reviewed and consulted a wide range of professionally appropriate resources in analyzing and designating the Greenway RMA. Manasota-88 and Compton also contend that the Greenway RMA is inadequate in the sense that the RMA does not include all appropriate areas of the County. This claim was based on testimony that the Greenway did not include certain areas west and south of Interstate 75 in the Urban/Suburban and Economic Development RMAs, as well as a few conservation habitats (preserve areas) set aside by Development of Regional Impacts or restricted by conservation easements. However, the preserve areas and conservation easement properties will be preserved and maintained in the same fashion as the Greenway, so for all practical purposes their non-inclusion in the Greenway is not significant. The area located south of Interstate 75 was found to be the Myakka State Forest, which is in the planning jurisdiction of the City of North Port. Manasota-88's and Compton's witness (an employee of the FFWCC) also advocated a slightly different greenway plan for fish and wildlife resources, which he considered to be a better alternative than the one selected by the County. The witness conceded, however, that his alternative was only one of several alternative plans that the County could properly consider. In this regard, the County’s Greenway RMA reacts to data on a number of factors, only one of which is fish and wildlife. One important factor disregarded by the witness was the influence of private property rights on the designation of areas as greenway. While the FFWCC does not factor the rights of property owners in its identification of greenways, it is certainly reasonable and prudent for the County to do so. This is because the County’s regulatory actions may be the subject of takings claims and damages, and its planning actions are expected to avoid such occurrences. See § 163.3161(9), Fla. Stat. Petitioners also alleged that the lack of specific inclusion of the term "A-E Flood Zone" in the Greenway designation criteria of Policy GS1.1 does not properly react to the data and analyses provided in the Greenway Final Support Document. (That policy enumerates the component parts of the Greenway RMA.) Any such omission is insignificant, however, because in the Greenway RMA areas, the A-E Flood Zone and the areas associated with the other criteria already in Policy GS1.1 are 90 percent coterminous. In addition, when an application for a master plan for a Village is filed, the master plan must specifically identify and protect flood plain areas. At the same time, through fine tuning, the development review process, the open space requirements, and the negotiation of the planned unit development master plan, the remaining 10 percent of the A-E Flood Zone will be protected like a greenway. Greenway crossings The Greenway RMA is designed in part to provide habitat and corridors for movement of wildlife. In the initial drafts of the Amendment, future road crossings of the Greenway were located to minimize the amount of Greenway traversed by roads. After further review by the County, and consultation with a FFWCC representative, the number of crossings was reduced to eleven. The road crossings in the Amendment are not great in length, nor do they bisect wide expanses of the Greenway. All of the proposed crossings traverse the Greenway in areas where the Greenway is relatively narrow. Of the eleven crossings in the Greenway, three crossings presently exist, and these crossings will gain greater protection for wildlife through the design requirements of Policy GS2.4 than they would under the current Plan. Petitioners also expressed concerns with the wording of Policy GS2.4 and contended that the policy was not specific enough with regard to how wildlife would be protected at the crossings. The policy provides that Crossings of the Greenway RMA by roads or utilities are discouraged. When necessary to ensure the health, safety and welfare of the citizenry, however, transportation corridors within the Greenway RMA shall be designed as limited access facilities that include multi-use trails and prohibit non- emergency stopping except at designated scenic viewpoints. Roadway and associated utility corridors shall be designed to have minimal adverse impacts to the environment, including provisions for wildlife crossings based on accepted standards and including consideration of appropriate speed limits. Accordingly, under the policy, wildlife crossings must be designed to facilitate minimal adverse impacts on wildlife, and such designs must be "based on accepted standards." While Petitioners contended that what is required by "accepted standards" is vague and ambiguous, the County established that this language, taken individually or in the context of the policies of the Amendment, is specific and clear enough to establish that a crossing must be properly and professionally designed for the target species that can be expected to cross the Greenway at the particular location. It was also appropriate to design the crossing at the time of the construction of the crossing to best react to the species that will be expected to cross. Although Petitioners disagreed that the policy was acceptable, their witness agreed that it is essential to know what species are inhabiting a particular area before one can design a wildlife crossing that will protect the wildlife using the crossing. He further acknowledged that he typically designs crossings for the largest traveling species that his data indicates will cross the roadway. In deciding where to locate roads, as well as how they should be designed, crossings for wildlife are not the only matter with which the local government must be concerned. Indeed, if it were, presumably there would likely be no roads, or certainly far fewer places where automobiles could travel. To reflect legitimate planning, and to reasonably react to the data gathered by the local government, the County’s road network should reflect recognition of the data and an effort to balance the need for roads with the impacts of them on wildlife. The Amendment achieves this purpose. In summary, Petitioners have failed to show beyond fair debate that the crossings of the Greenway do not react appropriately to the data and analyses, or that the policies of the crossings are so inadequate as to violate the statute or rule. Transportation planning Manasota-88 and Compton next contend that the data and analyses for the transportation planning omit trips, overstate the potential intensity and density of land uses, and understate trips captured in the Villages. The transportation plan was based on use of the FSUTMS, a model recommended by the State and widely used by transportation planners for trip generation and modeling for comprehensive plan purposes. In developing the transportation plan, the County relied upon resources from the Highway Capacity Manual, the Transportation Research Board, and the Institute of Transportation Engineers. It also reviewed the data and analyses based on the modeling performed in September 2001 in the Infrastructure Corridor Plan, an earlier transportation plan used by the County. To ensure that the 2001 model was still appropriate for the Amendment, the County conducted further review and analyses and determined that the modeling was reasonable for use in connection with the Amendment even though the intensity of development eventually provided for in the Villages was less than had been analyzed in the model. The evidence supports a finding that the data was the best available, and that they were evaluated in a professionally acceptable manner. The evidence further shows that the Amendment identifies transportation system needs, and that the Amendment provides for transportation capital facilities in a timely and financially feasible manner. Transportation network modeling was performed for the County both with and without the 2050 Amendment. Based on the modeling, a table of road improvements needed to support the Amendment was made a part of the Amendment as Table RMA-1. Because the modeling factored more residential and non- residential development than was ultimately authorized by the Amendment, the identification of the level of transportation impacts was conservative, as were the improvements that would be needed. Manasota-88 and Compton correctly point out that the improvements contained in the Amendment are not funded for construction. Even so, this is not a defect in the Amendment because the improvements are not needed unless property owners choose to avail themselves of the 2050 options; if they do, they will be required to build the improvements themselves under the fiscal neutrality provisions of the Amendment. Further, the County’s CIP process moves improvements from the five-to-fifteen year horizon to the five-year CIP as the need arises. Thus, as development proposals for Villages or Hamlets are received and approved in the areas east of I-75, specific improvements would be identified and provided for in the development order, or could be placed in the County’s appropriate CIPs, as needed. The improvements necessary under the Amendment can be accommodated in the County’s normal capital improvements planning, and the transportation system associated with the Amendment can be coordinated with development under the Amendment in a manner that will assure that the impacts of development on the transportation system are addressed. It is noted that the Amendment requires additional transportation impact and improvement analysis at the time of master plan submittal and prior to approval of that plan. Accordingly, the Amendment satisfies the requirements of Chapter 163, Florida Statutes, and Florida Administrative Code Chapter 9J-5 for transportation planning. The County used the best available data and reacted to that data in a professionally appropriate way and to the extent necessary as indicated by the data. As noted above, the transportation impacts and needs were conservatively projected, and the County was likely planning for more facilities than would be needed. It is beyond fair debate that the Amendment is supported by data and analyses. Utilities Manasota-88 and Compton also contend that the Amendment is not in compliance because the policies relating to capital facilities are not supported by data and analyses, and that there is a lack of available capital facilities to meet the demand. The County analyzed data on water supplies and demands and central wastewater facilities needs under the Amendment. The data on water supplies and demands were the best available data and included the District water supply plan as well as the County's water supply master plan. The data were analyzed in a professionally acceptable manner and the conclusions reached and incorporated into the Amendment are supported by the analyses. The utilities system for water and wastewater has been coordinated in the Amendment with the County’s CIP in a manner that will ensure that impacts on the utilities are addressed. The County established that there are more than adequate permittable sources of potable water to serve the needs associated with the Amendment, and that the needed capital facilities for water and wastewater can reasonably be provided through the policies of the Amendment. The evidence showed that the Amendment provides for capital facilities for utilities in a timely and financially feasible manner. The total water needs for the County through the year 2050 cannot be permitted at this time because the District, which is the permitting state agency, does not issue permits for periods greater than twenty years. Also, there must be a demonstrated demand for the resources within a 20- year time frame before a permit will issue. Nonetheless, the County is part of a multi-jurisdictional alliance that is planning for long-term water supplies and permitting well into the future. It has also merged its stormwater, utilities, and natural resources activities to integrate their goals, policies, and objectives for long-term water supply and conservation purposes. No specific CIP for water or wastewater supplies and facilities was adopted in the Amendment. The County currently has water and wastewater plans in its Capital Improvement Element that will accommodate growth and development under the land use policies of the Plan. From the list contained in the Capital Improvement Element an improvement schedule is developed, as well as a more specific five-year CIP. Only the latter, five-year program identifies funding and construction of projects, and the only projects identified in the Capital Improvement Element are projects that the County must fund and construct. Because of the optional nature of the Amendment, supplies and facilities needed for its implementation will only be capable of being defined if and when development under the Amendment is requested. At that time, the specific capital facility needs for the development can be assessed and provided for, and they can be made a part of the County’s normal capital facilities planning under the Plan's Capital Facilities Chapter and its related policies. Policy VOS 2.1 conditions approval of Village development on demonstrating the availability and permitability of water and other public facilities and services to serve the development. Further, the Amendment provides for timing and phasing of both Villages and development in Villages to assure that capital facilities planning, permitting, and construction are gradual and can be accommodated in the County's typical capital improvement plan programs. Most importantly, the fiscal neutrality policies of the Amendment assure that the County will not bear financial responsibility for the provision of water or the construction of water and wastewater capital facilities in the Village/Open Space RMA. Supplies and facilities are the responsibility of the developers of the Villages and Hamlets that will be served. Additionally, Policy VOS3.6 requires that all irrigation in the Village/Open Space RMA (which therefore would include Villages and Hamlets) cannot be by wells or potable water sources and shall be by non-potable water sources such as stormwater and reuse water. The supplies and improvements that will be associated with the optional development allowed by the Amendment have been coordinated with the Plan and can be accommodated in the County's normal capital improvement planning. Through the policies in the Amendment, the water and wastewater facility impacts of the Amendment are addressed. Indeed, due to the fiscal neutrality policies in the Amendment, the County now has a financial tool that will make it easier to fund and provide water and wastewater facilities than it currently has under the Plan. Finally, to ensure that capital facilities are properly programmed and planned, the Amendment also contains Policy VOS2.2, which provides in pertinent part: To ensure efficient planning for public infrastructure, the County shall annually monitor the actual growth within Sarasota County, including development within the Village/Open Space RMA, and adopt any necessary amendments to APOXSEE in conjunction with the update of the Capital Improvements Program. It is beyond fair debate that the capital facilities provisions within the Amendment are supported by adequate data and analyses, and that they are otherwise in compliance. Financial feasibility and fiscal neutrality The Capital Improvement Element identifies facilities for which a local government has financial responsibility, and for which adopted levels of service are required, which include roads, water, sewer, drainage, parks, and solid waste. Manasota-88 and Compton challenge the "financial feasibility" of the Amendment. As noted above, there is significant data and analyses of existing and future public facility needs. The data collection and analyses were conducted in a professionally acceptable manner. The evidence shows that as part of its analyses, the County conducted a cost-benefit analysis of the Village development and determined that Village and Hamlet development can be fiscally neutral and financially feasible. Dr. Fishkind also opined that, based upon his review of the Amendment, it is financially feasible as required by the Act. Policy VOS2.9 of the Amendment provides in part: Each Village and each Hamlet development within the Village/Open Space RMA shall provide adequate infrastructure that meets or exceeds the levels of service standards adopted by the County and be Fiscally Neutral or fiscally beneficial to Sarasota County Government, the School Board, and residents outside that development. The intent of Fiscal Neutrality is that the costs of additional local government services and infrastructure that are built or provided for the Villages or Hamlets shall be funded by properties within the approved Villages and Hamlets. Policies VOS2.1, VOS2.4, and VOS2.9 provide that facility capacity and fiscal neutrality must be demonstrated, and that a Fiscal Neutrality Plan and Procedure for Monitoring Fiscal Neutrality must be approved at the time of the master plan and again for each phase of development. In addition, under Policy VOS2.9, an applicant's fiscal neutrality analysis and plan must be reviewed and approved by independent economic advisors retained by the County. Monitoring of fiscal neutrality is also provided for in Policy VOS2.2. Finally, Policy VOS2.10 identifies community development districts as the preferred financing technique for infrastructure needs associated with Villages and Hamlets. The evidence establishes beyond fair debate that the policies in the Amendment will result in a system of regulations that will ensure that fiscal neutrality will be accomplished. Internal inconsistencies Manasota-88 and Compton further contend that there are inconsistencies between certain policies of the Amendment and other provisions in the Plan. If the policies do not conflict with other provisions of the Plan, they are considered to be coordinated, related, and consistent. Conflict between the Amendment and the Plan is avoided by inclusion of the following language in Policy RMA1.3: If a property owner chooses to take advantage of the incentives provided by the Sarasota 2050 RMA, then to the extent that there may be a conflict between the Sarasota 2050 Resource Management Area Goal, Objectives and Policies and the other Goal[s], Objectives and Policies of APOXSEE, the Sarasota 2050 Resource Management Area Goal, Objectives and Policies shall take precedence. The other Goals, Objectives and Policies of APOXSEE including, but not limited to, those which relate to concurrency management and environmental protection shall continue to be effective after the adoption of these Resource Management Area Goal, Objectives and Policies. As to this Policy, Manasota-88's and Compton's claim is really nothing more than a preference that the Plan policies should also have been amended at the same time to expressly state that where there was a conflict between themselves and the new Amendment policies, the new Amendment would apply. Such a stylistic difference does not amount to the Amendment's not being in compliance. Therefore, it is fairly debatable that the Amendment is internally consistent with other Plan provisions. Public participation and intergovernmental coordination Petitioners next contend that there was inadequate public participation during the adoption of the Amendment as well as a lack of coordination with other governmental bodies. Ayech also asserted that there were inadequate procedures adopted by the County which resulted in less than full participation by the public. However, public participation is not a proper consideration in an in-compliance determination. In addition, the County has adopted all required procedures to ensure public participation in the amendment process. The County had numerous meetings with the municipalities in the County, the Council of Governments (of which the County is a member), and meetings and correspondence by and between the respective professional staffs of those local governments. The County also met with the Hospital Board and the School Board. The evidence is overwhelming that the County provided an adequate level of intergovernmental coordination. Regional and state comprehensive plans Petitioners have alleged violations of the state and regional policy plans. On this issue, Michael D. McDaniel, State Initiatives Administrator for the Department, established that the Amendment was not in inconsistent with the State Comprehensive Plan. His testimony was not impeached or refuted. Petitioners' claim that the Amendment is not consistent with the regional policy plan is based only on a report prepared by the Southwest Florida Regional Planning Council (SWFRPC) at the Amendment’s transmittal stage. There was no evidence (by SWFRPC representatives or others) that the report raised actual inconsistencies with the SWFRPC regional policy plan, nor was any evidence presented that the SWFRPC has found the amendment, as adopted, to be inconsistent with its regional plan. There was no persuasive evidence that the Amendment is either in conflict with, or fails to take action in the direction of realizing goals or policies in, either the state or regional policy plan. Other objections Finally, all other objections raised by Petitioners and not specifically discussed herein have been considered and found to be without merit. County's Request for Attorney's Fees and Sanctions On April 5, 2004, the County filed a Motion for Attorneys Fees and Sanctions Pursuant to F.S. § 120.595 (Motion). The Motion is directed primarily against Ayech and contends that her "claims and evidence were without foundation or relevance," and that her "participation in the proceeding was 'primarily to harass or cause unnecessary delay, or for frivolous purpose.'" The Motion also alleges that Manasota-88 and Compton "participated in this proceeding with an intent to harass and delay the Amendment from taking effect." Replies in opposition to the Motion were filed by Petitioners on April 12, 2004. The record shows that Ayech aligned herself (in terms of issues identified in the Pre-Hearing Stipulation) with Manasota-88 and Compton. While her evidentiary presentation was remarkably short (in contrast to the other Petitioners and the County), virtually all of the issues identified in the parties' Pre-Hearing Stipulation were addressed in some fashion or another by one of Petitioners' witnesses, or through Petitioners' cross-examination of opposing witnesses. Even though every issue has been resolved in favor of Respondents (and therefore found to be either fairly debatable or beyond fair debate), the undersigned cannot find from the record that the issues were so irrelevant or without some evidentiary foundation as to fall to the level of constituting frivolous claims. Accordingly, it is found that Petitioners did not participate in this proceeding for an improper purpose.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the Sarasota County plan amendment adopted by Ordinance No. 2001-76 on July 10, 2002, is in compliance. DONE AND ENTERED this 14th day of May, 2004, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER 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 14th day of May, 2004.
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
Findings Of Fact The Petitioner, Albert Poza, applied for licensure by examination to practice architecture in the state of Florida. The architectural licensure examination administered by the Respondent consists of two portions, the written examination given in December of each year and the site planning and design portion administered in June of each year. The Petitioner has complied with all requirements for admittance to the subject examination. The Petitioner sat for a twelve hour examination consisting of a drafting or sketching problem concerning which he was required to design a particular type of building to be accommodated to a particular site, taking into consideration numerous design and site considerations such as human traffic flow, parking, access to all floors, heating and cooling, including natural heating and lighting and numerous other aesthetic, engineering and legal requirements. The examination is administered by the office of Examination Services of the Department of Professional Regulation and is supplied to the state of Florida as well as to all other jurisdictions in the United States by the National Counsel of Architectural Registration Boards (NCARB) . Pursuant to the authority delineated below, this examination has been adopted for use by Florida applicants for licensure. The examination itself is so constituted as to require the applicant for licensure, the Petitioner, to design a structure for placement on a particular site, including mandatory requirements for accommodating the structure to the site, and vice versa, detailed design of elevations, building cross-sections, facades, and floor plans, as well as effective use of natural light and solar heating potential, regard for the physical and aesthetic needs of the building's occupants, its impact on the environment of the site and its locality and numerous other criteria. Prior to sitting for the examination, each applicant, including the Petitioner, receives a pre-examination booklet setting forth the architectural program to be accomplished by the applicant and various requirements to which the Petitioner is expected to apply himself in order to receive a passing grade. Immediately prior to commencing the examination itself, the Petitioner received other information designed to enable him to more adequately design the structure requested and perform the necessary technical and architectural requirements of the problem. In general, the examination was designed to require the Petitioner to design a solution to the site plan and the building design problems submitted to him by NCARB. The pertinent portion of the examination thus allows the examination graders, and through them, the Florida Board of Architecture, to determine whether an applicant such as the Petitioner is able to coordinate the various structural design, technical, aesthetic, energy and legal requirements in order to resolve the design and site plan problem after having been tested on these same requirements in written form in the initial portion of the examination administered in December of each year. The grading of the site and design portion of the examination was accomplished by submission of the Petitioner's work product to at least three architects selected by the various architectural registration boards of some twenty states. These graders are given training by the NCARB in order to standardize their conceptions of minimal competence required for achievement of a satisfactory grade on the examination. Each architect grader is then asked to review and score various solutions to the site and design problem submitted by applicants, including the Petitioner, on a blind grading basis. The grader has no knowledge of the name or state of origin of the applicant whose solution he is grading. The grader is instructed to take into consideration the various criteria set forth in Rule 21B-14.03, Florida Administrative Code, and the evaluation criteria set forth in the grading sheet. The graders are instructed to note areas of strength and of weakness in an applicant's solution with regard to the grading criteria and then determine, based on an overall conception of the solution submitted by the applicant, whether or not a passing grade is warranted. A passing grade is defined as a holistic grade of three or four as set forth in Rule 21B-14.04, Florida Administrative Code. The applicant must receive at least two passing grades from the three architect graders who independently grade his solution to the problem in order to pass the relevant portion of the exam. The Petitioner herein received two "2's", which are failing grades and one "3", which is a passing grade. The Petitioner demonstrated an effort to comply with the instructions set forth in the examination, as well as the pre- examination booklet. He failed, however, to achieve sufficient clarity of presentation in several material areas such that the graders could make a clear determination that he understood and had complied with sufficient of the mandatory criteria to achieve passage of the examination. As established by Herbert Coons, Executive Director of the Florida Board of Architecture, and Glenn Paulsen, Professor of Architecture at the University of Michigan, both graders of the Petitioner's examination and the Respondent's expert witnesses, the Petitioner failed to supply sufficient information to permit a passing score to be awarded based upon the criteria required to be considered and complied with in the examination program and by the authority cited below. The Petitioner's examination was deficient in a number of material respects. The Petitioner violated the setback requirements as to the side entrance of the building in question with the result that significant alterations of the off-site and publicly owned sidewalks and easements would be required in order to effect his design solution. It is not good architectural practice, when asked to design a structure, to use land which is not part of the land owned by the client requesting the design. The examination program also specifically required that the candidate either maximize the floor space in the building by eliminating some amenities or if determining to insert amenities such as atria, balconies, large interior spaces and so forth, that these be provided in such a way to make the structure a luxury-type office building. In effect, the owner's goals in this design problem sought either a functional building with maximum floor space or a luxury building with minimal floor space, but with significant cultural amenities. In his solution, the Petitioner did not meet either of those two goals, since he included minimal floor space and yet an insufficient number of luxury features required by the program as an alternative. Other significantly deficient areas in the Petitioner's examination solution included his failure to visually relate the building's design to adjacent buildings. That is, he ignored the instructions in the program requiring him to design a building in an area of historical significance with an appearance which is compatible with adjacent historical buildings; pictures of adjacent buildings being furnished in his examination booklet. The Petitioner failed to allow adequate room in the mechanical equipment space for heating and air conditioning equipment, which the size and type building would require. Additionally Witness Coons established, by scaling the Petitioner's design solution, that the building was too large for the site on which it was to be constructed. Portions of it would encroach upon public property and violate local zoning ordinances. In a more serious vein, it was established that the building design did not contain an adequate allowance for structural support as to the various spans over the columns. The column spacing was appropriate, but the beams depicted are not of a sufficient size and type to safely support the structure and there is a danger that a building so constructed would collapse. Additional deficiencies noted involved poor human traffic circulation in the third floor lobby area design, insufficient storage space included in the design for the third floor lecture room and inadequate provision for landscaping. Other less significant deficiencies were noted including, as admitted by the Petitioner that the square footage on the upper floors was in error. In short, significant program requirements were not provided for or complied with by the Petitioner. In view of the above determined deficiencies, the Petitioner failed to establish that his solution to the site and design problem posed by the examination reflects sufficient and appropriate consideration of the requirements and criteria he was instructed to address.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence in the record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore
The Issue The issue for determination in this proceeding is whether Petitioner is entitled to licensure by endorsement as a landscape architect without examination pursuant to Chapter 481, Florida Statutes.
Findings Of Fact Background Petitioner has been licensed in the State of Tennessee as a landscape architect since 1973. Petitioner was issued his license in Tennessee without examination and without completing a professional degree program in landscape architecture. Petitioner was issued a license in Tennessee pursuant to a grandfather clause in that state's licensure requirements. On August 29, 1988, Petitioner submitted an application to the State of Florida, Department of Professional Regulation, Board of Architects (the "Department") for licensure by endorsement as a landscape architect. Respondent denied Petitioner's application for licensure by endorsement on October 17, 1988, but certified Petitioner as eligible to take the written examination for licensure. Petitioner requested a formal hearing on November 9, 1988. The matter was placed on the agenda for the next meeting of the Board of Landscape Architecture (the "Board"). The Board denied Petitioner's application for licensure by endorsement on February 17, 1989. 1/ The Board, however, approved Petitioner to take the written examination as a so-called ". . . six- year candidate." 2/ Petitioner had at least six years of practical experience of a grade and character that was satisfactory to the Board for the purpose of taking the written examination. 3/ The Executive Director of the Board advised Petitioner by letter dated March 28, 1989, that the Board had approved Petitioner to take the examination required in Section 481.309 as a result of Petitioner's experience. Petitioner sat for and successfully completed the state portion of the examination required in Section 481.309, Florida Statutes. The examination required in Section 481.309 includes both a national portion and a portion concerning ". . . the specialized aspects of the practice of landscape architecture in Florida" (the "state portion" ). 4/ Petitioner requested to be scheduled for the state portion of the examination on April 24, 1989. Respondent sent Petitioner an acknowledgement of the request to be scheduled for the state portion of the examination on June 12, 1989. Petitioner achieved a score of 85 on the state portion of the examination. The Department notified Petitioner on January 15, 1990, that he had passed the exam and that his application for licensure had been approved by the Board. The notice of Petitioner's passing grade required Petitioner to submit a registration fee of $225. Petitioner tendered the required registration fee in accordance with the notice. The Department subsequently returned the registration fee with a letter notifying Petitioner that the Department had made an error. The Department determined that Petitioner had passed only the state portion of the examination. Petitioner did not take the national portion of the examination. The national portion of the examination is prepared by the Council of Landscape Architectural Registration Boards ("CLARB"), is very technical, and is aimed at college graduates with technical training. Petitioner believed that the likelihood of completing the national portion of the examination successfully was not great. Petitioner could not take the oral examination offered by CLARB as an alternative to the national portion of the written examination because CLARB requirements at the time required Petitioner to reside in Tennessee, i.e., the state in which he was licensed. After the Department returned the registration fee with a letter notifying Petitioner that the Department had made an error, Petitioner again requested an administrative hearing on June 25, 1990, and on August 23, 1990. On October 5, 1990, the Petitioner's request for licensure by endorsement came on to be heard as an agenda item before the Board and, after discussion, was denied. On October 10, 1990, Respondent notified Petitioner that his request for licensure without examination was denied and the Petitioner was afforded the right to request an administrative hearing. On October 29, 1990, and on November 1, 1990, through counsel, Petitioner requested a formal administrative hearing. Criteria For Licensure The criteria for licensure in Florida and Tennessee were not substantially identical when Petitioner was issued his license in Tennessee in 1973. Florida and Tennessee generally required each applicant to demonstrate his or her competency by written examination. 5/ In order to sit for the examination in Florida, an applicant was required to have completed four years of high school and either: have been graduated from a nationally accredited college or university offering an approved curriculum in landscape architecture; or have no less than 11 years of practical experience satisfactory to the Board. Conversely, an applicant could sit for the examination in Tennessee with seven years of practical experience in lieu of a college degree. 6/ Petitioner did not satisfy the requirements for exemption from examination pursuant to the reciprocity provisions in effect in Florida in 1973. The Board was statutorily authorized to exempt an applicant who held a license issued by another state if the out-of-state license was issued upon examination and if the requirements for the out-of-state license were the full equivalent of the requirements in this state at the time the out-of-state license was issued. 7/ Petitioner's license was not issued to him in Tennessee upon examination. For the reasons stated in the preceding paragraph, the requirements for the Tennessee license were not the full equivalent of the requirements in Florida. Standards prescribed in the grandfather clauses in Florida and Tennessee in 1973 were not substantially identical. Both Florida and Tennessee had statutory provisions in effect in 1973 which exempted applicants in each state from the criteria for licensure if such applicants satisfied the practical experience standards prescribed in the respective statutory provisions ("grandfather clauses"). The grandfather clause in Florida required the applicant to have one year experience and to apply for licensure within six months of the date of enactment of the grandfather clause. The grandfather clause in Tennessee authorized that state's board to license without written examination any applicant who was practicing landscape architecture at the time the Tennessee law was enacted, who had experience satisfactory to the board, and who applied for licensure without examination within one year of the effective date of the Tennessee grandfather clause.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is recommended that Respondent enter a Final Order determining that Petitioner is not eligible for licensure by endorsement as a landscaper architect. DONE and ENTERED this 16th day of September, 1991, in Tallahassee, Leon County, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of September, 1991.
Findings Of Fact Petitioner, Jorge L. Garcia, is an applicant for licensure by examination to practice architecture in the State of Florida. The architecture examination in the State of Florida is of seven parts, part of which is the written examination and the rest of which is a site and design examination, which is given in June of each year. Petitioner took the building design portion of the Architecture Registration Examination in June, 1985. This portion of the examination consists of a 12-hour sketch problem involving building design considerations. The examination is administered by the Office of Examination Services of the Department of Professional Regulation, and is supplied to the State of Florida as well as to all of the jurisdictions of the United States by the National Council of Architectural Registration Boards (NCARB). The examination itself involves the design of a structure by an applicant which meets specific requirements for placing the structure on the site, elevations, building cross- sections, facades, and floor plans. The program for the 1985 examination called for the design of a city administration building. Information supplied to the applicant includes a pre-examination 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. Applicants also may study a series of solutions proposed by previous successful and unsuccessful applicants so that they may anticipate and apply successful solutions when taking their own examination. 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 building design solution in response to a program submitted to him by NCARB. This portion of the examination therefore, allows the national testing service grading the examination, and through it, the Florida Board of Architecture, to determine whether the applicant is able to coordinate the various structural, design, technical, aesthetic, energy, and legal requirements. The grading of the building design problem is accomplished by the review of the applicant's proposed examination solution 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 competency required for a passing grade. Each architecture grader is then asked to review various solutions 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 examination solution he is grading. The grader is instructed to take into consideration various criteria as set forth in Rule - 21B-14.03, Florida Administrative Code. Graders are instructed to make notations or areas of strength and of weakness on the grading criteria and then to determine, based upon an overall conception of each applicant's submission, whether or not a passing grade of 3 or 4 as set forth in Rule 21B-14.04, Florida Administrative Code, has been earned. A method used to ensure independent and confidential grading of a solution is the folding of a single score sheet in such a way as to not allow subsequent graders to see the previous score. Approximately 3 and one-half minutes is utilized as the time in which each grader has to grade each applicant's exam. Page 7 of the Juror's Manual (graders manual) points out: Examinees are entitled to make some mistakes. The program analysis, design , development and drafting are hurriedly executed in a tense situation, without recourse to normal office reference materials (Sweets catalogs Architectural Graphic Standards, etc.) and without customary time for deliberation and critique by others. Jurors (graders) are permitted to recommend changes to an applicant's submission to bring it up to passing. In order for an applicant to pass, he must receive at least two passing grades from the at least three architects who independently grade the applicant's submission. In the instant case, the Petitioner received three 2's (which are failing grades) and one 3 (which is a passing grade). Petitioner's exam solution presented a borderline case since one of the three graders who originally graded his exam gave him a passing grade. His response to notification of failure to pass this portion of the exam was a timely request for a Section 120.57(1) hearing and this proceeding ensued. While Petitioner attempted to comply with the instructions as set forth in the examination and pre-examination booklets, it is clear that in several material areas he failed to achieve requisite minimal competency necessary to receive a passing score on the examination. The testimony of Arnold Butt, Registered Architect, former chairman of the Department of Architecture at the University of Florida and a master grader in the building design examination, is the only expert testimony of record. In Butt's opinion, Petitioner's submission contained several material departures from specific program requirements applicable to the 1985 examination. Specifically, Petitioner failed to place in his submission a delivery system, thus failing to meet program requirements, and showed no method of entry or egress. Further, there was no method of entry or egress from the river walk. Although Butt complimented Petitioner in overcoming one type of circulation problem that was overlooked by many other applicants at the same examination, Petitioner's circulation design was still full of many errors described by Mr. Butt, including life safety factors. Mr. Butt admitted that the graders had not marked life safety as a weakness present in Petitioner's exam. However, Butt's critique of Petitioner's circulation problems shows circulation overlaps into the area of "design logic." For other reasons, including but not limited to Petitioner's showing of certain features such as windows only upon the elevation sheets (as opposed to upon other sheets as well) and failure to show all of an access road, his errors and omissions also overlap into the evaluation criteria of "clarity and completeness of presentation." While Petitioner attempted to show, through use of the publication of NCARB which contains within it samples of various passing and failing examinations, that his examination submission was similar to those which had been recorded as passing grades, he was unsuccessful in discrediting the overall perception of Butt that there were significant difficulties in Petitioner's design solution which, taken as a whole, were much more numerous than the various solutions (both passing and failing) which were compared with Petitioner's solution. In a review of the sample solutions, Butt conceded that some of the errors that Petitioner made were also made by some of the candidates who achieved passing scores. However, Petitioner's examination submission contained a combination of many errors in one paper, which same errors may have existed only individually in some of the passing examples. In short, Petitioner's reliance on the NCARB-produced review booklet is misplaced in that his submitted solution to the problem presented a conglomeration of many of the errors which may have been passing if presented individually in various of the examples contained in the NCARB manual. Petitioner, who has the burden of proof in these de novo proceedings, has therefore failed to demonstrate that his examination solution exhibits minimal competency within the criteria necessary for a passing score.
Recommendation Therefore, it is, RECOMMENDED that the Board of Architecture enter a Final Order affirming that Petitioner has failed the licensure examination for 1985. DONE and RECOMMENDED this 12th day of June, 1987, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 12th day of June, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2195 The following constitute rulings pursuant to Section 120.59(2), Florida Statutes, upon the parties' respective proposed findings of fact (FOF). Petitioner's Proposed Findings of Fact: 1-2. Covered in Recommended Order FOF 1-3. 3-4. Covered in FOF 10. 5-7. Those portions not accepted are rejected as not supported by the greater weight of the competent substantial evidence as a whole as set forth in FOF 11-12. Further, Mr. Butt testified that once the Petitioner's solutions to the problem were utilized, it was probable the graders would not give him the benefit of the doubt to recommend changes to his submitted because any reasonable solutions they might propose would require almost total redesign of his proposed building instead of the minimal changes they might be permitted to recommend. Rejected as not supported by the competent substantial evidence as covered in FOF 7. Three and 1/2 minutes was given as a fair estimate of the time actually used, not the time permitted. Covered in FOF 9; see also ruling on proposals 5-7 above. Covered in FOF 10; see also ruling on proposals 5-7 above. Accepted but immaterial and not dispositive of any issue at bar. The graders were not precluded from making more than three recommended marks. Respondent's Proposed Findings of Fact: Covered in FOF 1; that which is rejected is subordinate and unnecessary. Covered in FOE 2. Covered in FOE 4 and 6. Covered in FOF 7 and 10. Covered in FOE 10. 6-7. Covered in FOF 11 and 12 but substantially modified for independent clarity of expression. COPIES FURNISHED: Pat Ard, Executive Director DPR-Board of Architecture 130 North Monroe Street Tallahassee, Florida 32399-0750 Jorge L. Garcia 1744 Southwest First Avenue Miami, Florida 33134 Jorge L. Garcia 231 Southwest 52nd Avenue Miami, Florida John Rimes, Esquire Department of Legal Affairs The Capitol - LL04 Tallahassee, Florida 32399-1050 Joseph A. Sole, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
