98-000820 Cheryl R. Wierzba vs. Board Of Landscape Architecture Status: Closed Recommended Order on Friday, September 11, 1998.

Summary: Applicant`s challenge regarding 1997 landscape architecture licensing examination without merit.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHERYL R. WIERZBA, )

)

Petitioner, )

)

vs. ) Case No. 98-0820

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, BOARD )

OF LANDSCAPE ARCHITECTURE, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a Section 120.57(1) hearing was held in

this case on July 22, 1998, by video teleconference at sites in

Orlando and Tallahassee, Florida, before Stuart M. Lerner, a duly

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Cheryl R. Wierzba, pro se

172E Versailles Drive

Melbourne, Florida 32951

For Respondent: R. Beth Atchison, Esquire

Department of Business and

Professional Regulation

Office of the General Counsel

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0750

STATEMENT OF THE ISSUE

Whether Petitioner's challenge regarding the June 1997

landscape architecture licensure examination should be sustained.

PRELIMINARY STATEMENT

By letter dated December 6, 1997, Petitioner requested "a

formal hearing before the Division of Administrative Hearings

pursuant to Section 120.57(1), Florida Statutes," on her

challenge regarding parts 2(7), 4 and 5 of the June 1997 national

landscape architecture licensure examination. On February 19,

1998, the matter was referred to the Division of Administrative

Hearings (Division) for the assignment of an administrative law

judge to conduct the hearing Petitioner had requested.

As noted above, the heari ng was held on July 22, 1998. At

the outset of the hearing, the parties advised that Petitioner's

challenge concerning parts 4 and 5 of the examination was moot

inasmuch as, subsequent to initiating her challenge, she had

retaken and received passing grades on those parts of the

examination.

Petitioner and Clarence Chafee, the Executive Director of

the Council of Landscape Architectural Registration Boards, were

the only two witnesses to testify at the final hearing. In

addition to their testimony, a total of 14 exhibits (Petitioner's

Exhibits 1 through 9 and Respondent's Exhibits 1 through 5) were

offered and received into evidence.

At the conclusion of the evidentiary portion of the hearing,

the undersigned announced, on the record, that if the parties

desired to file proposed recommended orders, they had to do so

within 14 days from the date the transcript of the final hearing

was filed with the Division. The hearing transcript was filed on

August 10, 1998.

On August 5, 1998, Petitioner filed a motion requesting that

the record in the instant case be reopened so that she could

offer, and the undersigned could receive, an additional exhibit,

a letter dated July 29, 1998, from Bret D. Hammond to Petitioner

(which Petitioner asked be marked as Petitioner's Exhibit 10).

On August 7, 1998, the undersigned issued an Order, which

provided as follows:

No later than 12 days from the date of this

Order, Respondent shall file a written

response to Petitioner's motion if it opposes

the motion. Petitioner's motion will be

deemed to be unopposed if no such written

response is timely filed.

Not having received any written response to Petitioner's

motion, the undersigned, on August 25, 1998, issued an order

granting the motion and receiving Petitioner's Exhibit 10 into

evidence.

Petitioner and Respondent filed their proposed recommended

orders on August 5, 1998, and August 27, 1998, respectively.

These proposed recommended orders have been carefully considered

by the undersigned.

FINDINGS OF FACT

Based upon the evid ence adduced at hearing and the record as

a whole, the following findings of fact are made:

1. In June of 1994, Petitioner took the national landscape

architecture licensure examination ( LARE).

2. LARE is an examination developed, administered and

graded by the Council of Landscape Architectural Registration

Boards ( CLARB).

3. The 1994 version of LARE, like all subsequent pre-1997

versions of the examination, contained seven parts: Legal and

Administrative Aspects of Practice (part 1), Programming and

Environmental Analysis (part 2), Conceptualization and

Communication (part 3), Design Synthesis (part 4), Integration of

Technical and Design Requirements (part 5), Grading and Drainage

(part 6) and Implementation of Design Through the Construction

Process (part 7). Three of the seven parts of the examination,

parts 1, 2 and 7, consisted of multiple choice questions. Parts

2 and 7 had 90 and 120 questions, respectively. The passing

score for each part of the examination was 75.

4. On the June 1994 examination, Petitioner received a

passing grade of 75 on part 2 and failing grade of 69 on part 7.

5. In June of 1995, Petitioner retook part 7 of the

examination (as well as four other parts of the examination she

had failed in 1994).

6. Petitioner received a failing grade of 71 on part 7 of

the June 1995 examination.

7. After receiving her scores on the June 1995 examination,

Petitioner sent a letter, dated October 10, 1995, to the

Department of Business and Professional Regulation (Department),

which read as follows:

Pursuant to Section 120.57(1), Florida

Statutes, I would like to petition for a

formal hearing before the Division of

Administrative Hearings.

I am disputing my scores achieved on the

Landscape Architecture Registration

Examination ( LARE) for sections 3, 4, 5 6 and

7. The reason I am disputing the score on

these sections is because I was comfortable

with the examination format, paid specific

attention to detail and felt confident that I

had successfully designed appropriate

buildable solutions to the problems meeting

or exceeding minimum competency.

The procedures for requesting a formal

hearing were written with what appear to be

contradictions and therefore I am enclosing a

copy that was mailed to me. Since the

information pamphlet specifically states that

NO CHALLENGES TO SECTIONS 1 THRU 7 OF THE

EXAMINATION WILL BE ACCEPTED, it is not clear

then why it states that a candidate electing

to review the examination for the purpose of

submitting challenges is then stated. I did

call the Department of [Business and

Professional] Regulation and spoke with JoAnn

Richardson at the Bureau of Testing for

clarification. In my first conversation with

her, she stated that I would be able to

request a pre-hearing review in order to

accurately challenge my scores. In a second

conversation with her on that same day, she

then said that it would be O.K. to go to the

review and then submit this letter of

petition for a formal hearing. Since the

dates in this pamphlet do not accurately

reflect our conversation, I asked her if she

could write it in a letter for me so that I

was confident that I would not miss the

deadline to file for this petition. I have

not received this letter from her and

therefore am petitioning for a formal hearing

at this time with a request for a pre-hearing

review of my examination.

8. Petitioner received a letter from the Department, dated

October 27, 1995, acknowledging receipt of her

October 10, 1995, letter and advising her that her letter had

been "forwarded to the Office of the General Counsel for review

and action."

9. No action, however, was subsequently taken on the

matter.

10. Petitioner telephoned the Department on several

occasions to ascertain the status of her hearing request. She

was told that she would be notified when a hearing was scheduled.

Such notification, however, never came.

11. Petitioner therefore applied to retake, in June of

1996, those parts of the LARE she had not yet passed, including

part 7.

12. The Pre-Exam Orientation Information booklet that CLARB

sent to candidates before the June 1996 examination alerted

candidates to the following:

1996 will be the last time to take Sections 2

and 7 of the LARE separately. In 1997,

Sections 2 and 7 of the current test will be

combined into a new Section 2(7)- Analytical

and Technical Aspects of Practice. If a

candidate does not pass both Sections 2 and 7

separately in 1996 he/she will be required to

complete the new Section 2(7).

13. Petitioner received a failing grade of 74 on part 7 of

the June 1996 examination.

14. She did not take any steps to challenge this failing

grade.

15. The revisions announced in the 1996 Pre-Exam

Orientation Information booklet were made to the 1997 version of

the LARE. Parts 2 and 7 of the examination were replaced by a

new part 2(7), entitled "Analytical and Technical Aspects of

Practice," which consisted of 130 multiple choice questions.

This new part of the examination tested the same general

knowledge, skills and abilities as had parts 2 and 7 of the

previous examinations, but did so in a more efficient manner.

16. In June of 1997, Petitioner took part 2(7) of the

examination and received a failing grade.

17. The failing score that Petitioner received on part 2(7)

of the June 1997 examination, and the failing scores that she

received on part 7 of the 1994, 1995, and 1996 examinations, are

reliable indicators of her competency in the areas tested at the

time she took the examinations. These failing scores reflect her

failure to meet minimum competency in the areas tested, as

determined by the panel of experts who set the passing scores for

these examinations.

CONCLUSIONS OF LAW

18. A person seeking licensure to engage in the practice of

landscape architecture in Florida must take and pass a licensure

examination. Sections 481.309 and 481.311, Florida Statutes.

19. At all times material to the instant case, the

licensure examination for landscape architects has consisted of

the LARE (as allowed by Section 455.217(1)(d), Florida

Statutes 1 ), plus a part "on the specialized aspects of the

practice of landscape architecture in this state" (in accordance

with the requirements of Section 481.309(2), Florida Statutes).

20. At all times material to the instant case, Rule 61G10-

11.001, Florida Administrative Code, a rule adopted by the Board

of Landscape Architecture (Board), has prescribed the contents of

the licensure examination and has provided as follows:

(1)(a) The Board [of Landscape Architecture]

approves the Landscape Architect Registration

Examination ( LARE) developed and administered

by the Council of Landscape Architectural

Registration Boards and specifies that it

will be the licensing examination

administered by the Department on the subject

areas set out in Sections (1)(b)1. through 7.

below. The Department shall develop and

administer the examination on subject area

(1)(b)8. below.

(b) The examination is written and measures

competency in the following subject areas:

1. Legal and Administrative Aspects of

Practice;

2. Programming and Environmental Analysis;

3. Conceptualizing and Communication;

4. Design Synthesis;

5. Integration of Technical and Design

Requirements;

6. Grading and Drainage;

7. Implementation of Design through

Construction Process;

8. Plant materials and specialized aspects

of practice in Florida, including laws and

regulations.

(2) The Board adopts the passing score for

the LARE as determined by the Council of

Landscape Architectural [Registration] Boards

( CLARB). Seventy-five is the passing score

on section (1)(b)8. above.

21. The examination review procedure is set forth in Rule

61G10-11.003, Florida Administrative Code, another Board rule,

which, at all times material to the instant case, has provided as

follows:

(1) A candidate may review the examination

questions, his answers, problem statements,

and the evaluation guide used to score his

answers. No candidate may copy materials

provided for his review.

(2) The candidates' review will take place

during regular business hours, in the

presence of a representative of the

Department, at the Department's official

headquarters. All security rules defined in

Rule 21-11.007, Florida Administrative Code,

shall apply to the review session. Any

candidate violating any security rule will be

subject to immediate dismissal from the

review session and imposition of other

appropriate sanctions.

(3) Written request for a review must be

received by the Department within fifteen

(15) days of the date on the candidate's

grade notice. Such review must be completed

within sixty (60) days after the grade

notice. During the review, if a candidate

disagrees with his scores on any part of the

examination for which objections may be

submitted, the candidate may submit written

objections to the examination items. Such

objections must specify the reasons as to why

the candidate is objecting to the item.

(4) Parts 1 through 5 of the examination as

provided in Rule 61G10-11.001(1)(b)1. -- 5.,

F.A.C., comprise a uniform national

examination with uniform grading criteria

determined by the Council of Landscape

Architectural Registration Boards ( CLARB) and

will not be subject to regrading by the

Department. The review provided by this rule

for those sections is purely to assist the

applicant in any reexamination. Any

objections submitted to Section 6 of the

examination as provided in Rule 61G10-

11.001(1)(b)6., F.A.C., will be evaluated and

the Department may alter the score under the

applicable procedures in Rule 21-11.011, 2

F.A.C.

22. Rule 61-11.012, Florida Administrative Code, a

Department rule, likewise provides, with respect to national

examinations, as follows:

If the examination being challenged is an

examination developed by or for a national

board, council, association, or society

(hereinafter referred to as national

organization), the Department shall accept

the development and grading of such

examination without modification.

23. The examination at issue in the instant case, the LARE,

is a national examination.

24. More specifically, at issue in the instant case is part

2(7) of the 1997 version of the LARE. Petitioner does not

question the "development" or "grading" of her performance on

that part of the 1997 examination. Rather, she contends that she

should not have been required, in order to qualify for licensure

as a landscape architect, to take this new part of the 1997

examination, which combined parts 2 and 7 of the previous version

of the examination, inasmuch as she had received a passing grade

on part 2 of the 1994 examination and had deserved to receive a

passing grade on part 7 of both the 1995 and 1996 examinations.

Petitioner's argument is without merit.

25. Pursuant to Section 481.311(2)(a), Florida Statutes, an

applicant, like Petitioner, seeking to be licensed as a landscape

architect (other than by endorsement) must pass (not simply come

close to passing) the licensure examination before he or she may

be certified for licensure by the Board. The LARE is a component

of the licensure examination the applicant must pass in order to

qualify for licensure. Petitioner has yet to pass all parts of

the LARE. She may have came close to passing part 7 of the

examination prior to 1997, but the grades that she received (in

1994, 1995, and 1996) on this part of the examination were still

failing grades, which, pursuant to Rules 61-11.012, and 61G10-

11.003(4), Florida Administrative Code, are not now (nor were

they at any time) subject to challenge or modification. 3

26. Not having received a passing grade on part 7 of the

LARE at any time prior to 1997, it was necessary for Petitioner

in 1997, if she wanted to be certified for licensure, to take

that part of the 1997 version of the LARE that she had yet to

pass--the new part 2(7), which had replaced parts 2 and 7 of the

previous version of the examination. Had part 2(7) of the 1997

examination covered only the subject matter that had been covered

in part 2 of the previous version of the examination (which

Petitioner had passed in 1994), the undersigned would find more

persuasive Petitioner's argument that she did not need to take

this new part of the examination to qualify for licensure. Part

2(7), however, also replaced part 7 of the old examination, which

Petitioner had never passed. She therefore needed to take and

pass this new part of the examination to qualify for licensure.

She took part 2(7) of the examination in 1997, but received a

failing grade (which she does not, nor could she, in light of the

provisions of Rules 61-11.012, and 61G10-11.003(4), Florida

Administrative Code, challenge).

27. Because Petitioner did not at any time prior to 1997

pass part 7 of the old version of the LARE, and because she has

not passed part 2(7) of the most recent version of the

examination, Petitioner is not qualified for licensure as a

landscape architect.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Respondent enter a Final Order finding that

Petitioner is not qualified for licensure as a landscape

architect because she has not yet passed the licensure

examination, as required by Section 481.311(2)(a), Florida

Statutes.

DONE AND ENTERED this 11th day of September, 1998, in

Tallahassee, Leon County, Florida.

___________________________________

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of September, 1998.

ENDNOTES

1 Section 455.217(1)(d), Florida Statutes, authorizes "[a] board,

or the department when there is no board [to] approve by rule the

use of any national examination which the [D] epartment has

certified as meeting requirements of national examinations and

generally accepted testing standards pursuant to [D] epartment

rules."

2 Rule 21-11.011, Florida Administrative Code, was transferred to

Rule 61-11.011, Florida Administrative Code, and then

subsequently repealed effective February 13, 1996.

3 Even if these failing grades could be challenged, the outcome

of the instant case would be same since the record evidence is

insufficient to establish any basis upon which to conclude that

one or more of the grades should be changed to a passing grade.

COPIES FURNISHED:

Cheryl R. Wierzba, pro se

172E Versailles Drive

Melbourne, Florida 32951

R. Beth Atchison, Esquire

Department of Business and

Professional Regulation

Office of the General Counsel

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0750

Lynda L. Goodgame, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Angel Gonzalez, Executive Director

Department of Business and

Professional Regulation

Board of Landscape Architecture

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0750

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this recommended order. Any exceptions to

this recommended order should be filed with the agency that will

issue the final order in this case.

1 Section 455.217(1)(d), Florida Statutes, authorizes "[a] board,

or the department when there is no board [to] approve by rule the

use of any national examination which the [D] epartment has

certified as meeting requirements of national examinations and

generally accepted testing standards pursuant to [D] epartment

rules."

2 Rule 21-11.011, F.A.C. was transferred to Rule 61-11.011,

Florida Administrative Code, and then subsequently repealed

effective February 13, 1996.

3 Even if these failing grades could be challenged, the outcome of

the instant case would be same since the record evidence is

insufficient to establish any basis upon which to conclude that

one or more of the grades should be changed to a passing grade.