94-007133 Eugenio Palenzuela vs. Board Of Architecture Status: Closed Recommended Order on Wednesday, April 19, 1995.

Summary: Candidate's challenge to failing scores received on 3 parts of architecture licensing exam without merit.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EUGENIO PALENZUELA, )

)

Petitioner, )

)

vs. ) CASE NO. 94-7133

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

BOARD OF ARCHITECTURE, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted by video teleconference

in this case on March 3, 1995, in Miami and Tallahassee, Florida, before Stuart

M. Lerner, a duly designated Hearing Officer of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Eugenio Palenzuela, pro se

13282 Southwest 119th Terrace

Miami, Florida 33186

For Respondent: William M. Woodyard, Esquire

Assistant General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0750

STATEMENT OF THE ISSUE

Whether Petitioner's challenge to the failing grades he received on the

Pre-Design (Division A), Lateral Forces (Division E) and Materials and Methods

(Division H) divisions of the June, 1994, architecture licensure examination

should be sustained?

PRELIMINARY STATEMENT

By letter dated November 28, 1994, Petitioner requested a formal hearing on

his challenge to the failing grades he received on the Pre-Design (Division A),

Lateral Forces (Division E) and Materials and Methods (Division H) divisions of

the June, 1994, architecture licensure examination. The matter was referred to

the Division of Administrative Hearings on December 22, 1994, for the assignment

of a hearing officer to conduct the formal hearing Petitioner had requested.

At the formal hearing, which was held on March 3, 1995, Petitioner

testified on his own behalf. He also offered one exhibit into evidence.

Respondent presented the testimony of two witnesses, Arnold Butt, a practicing,

Florida-licensed architect who taught architecture at the University of Florida

for 32 years before his retirement from teaching, and David Paulson, the

Department of Business and Professional Regulation's Director of Psychometrics

and Research. In addition to the testimony of these two witnesses, Respondent

offered four exhibits into evidence. All of Respondent's exhibits, as well as

Petitioner's lone exhibit, were received into evidence by the Hearing Officer.

Following the conclusion of the evidentiary portion of the hearing on March

3, 1995, the Hearing Officer advised the parties on the record that their post-

hearing submittals had to be filed no later than ten days following the Hearing

Officer's receipt of the transcript of the hearing. On March 14, the Hearing

Officer received a letter from Petitioner, dated March 10, 1995, in which he

stated the following:

The day of the hearing you informed me that

I had a right to formally petition the Division

of Administrative Hearings for [its] recommend-

ation to the Board of Architecture that all the

answers to the questions that I had challenged

be consider[ed] correct answers.

I presented my case to you with honesty and with

little or no time to research and prepare for the

hearing; but my testimony was obvious that I had

a strong argument to the questions and answers

that were challenged.

By you recommending to the Board that those answers

be consider[ed] correct, it will give me a passing

grade [on] Divisions A and H, which are two of the

four divisions that I will need to pass in order

to be able to obtain my Professional License.

At this time, I would also like to sincerely thank

the Division of Administrative Hearing[s] for [its]

guidance and for allowing me the opportunity to

present my case which [I] feel very strong[ly] about.

The Hearing Officer received the hearing transcript of the final hearing in

this case on April 11, 1995. On April 17, 1995, Respondent timely filed its

post-hearing submittal. Respondent's post-hearing submittal contains, among

other things, twelve proposed findings of fact. All of these proposed findings

of fact have been accepted by the Hearing Officer and incorporated in substance

[although not necessarily repeated verbatim] in this Recommended Order, with the

exception of proposed finding of fact 6, to the extent that it states that one

of the correct answers to Question 123 of Division H was "F-7" [as opposed to

"K-7"]. Other than his March 10, 1995, letter to the Hearing Officer, which

consists exclusively of argument, Petitioner has not filed any post-hearing

submittal.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record as a whole, the

following Findings of Fact are made:

1. Petitioner sat for the licensure examination for architects

administered in June of 1994.

2. The examination consisted of various divisions.

3. Division A covered the subject of pre-design.

4. The questions in this division of the examination were machine-graded,

multiple choice questions. Petitioner received a failing score of 72 on

Division A.

5. Question 6 of Division A asked the examinee to identify the term used

to describe the separate management units formed by ridge lines that divide the

land and determine regional drainage patterns.

6. These management units are called watersheds.

7. Accordingly, the correct answer to Question 6 of Division A was "D."

8. Petitioner selected "A," "swales," as his answer to the question.

9. Swales, however, while they are used as drainage areas, are not, unlike

watersheds, regional in character.

10. Petitioner's answer to Question 6 of Division A therefore was clearly

incorrect.

11. Question 8 of Division A asked the examinee to identify which of the

four drawings shown on the question sheet depicted a symmetric, hierarchal

pattern of land use.

12. The correct answer to the question was "B."

13. Petitioner selected "C" as his answer to the question.

14. "C," however, depicted an axial, rather than a hierarchal, pattern.

15. Petitioner's answer to Question 8 of Division A therefore was clearly

incorrect.

16. Question 13 of Division A tested the examinee's knowledge of the

impact the increase in the number of young, professional dual-income families

has had on residential neighborhoods.

17. The increase in the number of young, professional dual-income families

has increased property values in older established neighborhoods, led to the

building of large new suburban tracts, reduced the availability of residences

that moderate income families can afford and accelerated the restoration of

older neighborhoods.

18. Accordingly, the correct answer to Question 13 of Division A was "D."

19. Petitioner selected "B" as his answer to the question, which was

clearly incorrect.

20. Question 20 of Division A tested the examinee's knowledge of the

possible components of a market study.

21. A market study might include a windshield survey, data obtained from

questionnaires and/or an analysis of competing projects. A detailed financial

package, however, would not be part of a market study.

22. Accordingly, the correct answer to Question 20 of Division A was "C."

23. Petitioner selected "A" as his answer to the question, which was

clearly incorrect. 1/

24. Question 28 of Division A tested the examinee's knowledge of the

requirements of the national building code relating to multistory buildings.

25. The code allows, in a multistory building, two fire exits on one

corridor, fan coil units utilized in office space and a fire exit that

intersects two corridors. A corridor utilized as a return-air plenum, however,

is not permitted under the code.

26. Accordingly, the correct answer to Question 28 of Division A was "C."

27. Petitioner selected "D" as his answer to the question, which was

clearly incorrect.

28. Question 53 of Division A asked the examinee to identify the most

dominant design feature of the structures depicted on the question sheet.

29. The correct answer to Question 53 of Division A was "C," "facade

rhythm."

30. The structures depicted did not display vertical harmony inasmuch as

their facades were different.

31. Accordingly, the answer selected by Petitioner, "A," "vertical

harmony," was clearly incorrect.

32. Division E of the examination covered the subject of lateral forces.

The questions in this division of the examination were machine-graded, multiple

choice questions. Petitioner received a failing score of 73 on Division E.

33. Question 14 of Division E tested the examinee's knowledge of the

factors which determine the maximum lateral-load and shear capacity of a plywood

roof diaphragm.

34. These factors include nail size, nail penetration, plywood thickness

and plywood species.

35. Accordingly, the correct answer to Question 14 of Division E was "D,"

not "C," the answer Petitioner selected. 2/

36. Division H of the examination covered the subject of materials and

methods. The questions in this division of the examination were machine-graded,

multiple choice questions. Petitioner received a failing score of 74 on

Division H.

37. Question 21 of Division H tested the examinee's knowledge of the

requirements of the model building code relating to the dimensions of a Class A

interior stairway in a newly constructed multistory building serving an occupant

load of 100.

38. The correct answer to the question was "D," "60 inches."

39. Petitioner selected "C," "48 inches," as his answer to the question.

40. Although the Americans with Disabilities Act (ADA) requires that Class

A interior stairways in multistory buildings have a minimum clear width of 48

inches between the handrails, question 21 of Division H was based upon the

requirements of the model building code, not the requirements of the ADA.

41. Accordingly, Petitioner's answer to the question was clearly

incorrect.

42. Questions 121 through 123 of Division H tested the examinee's

knowledge of the components of an inverted (IRMA) roof system.

43. There were two correct answers to Question 123, "F-9" ("membrane") and

"K-7" ("vapor barrier"). Petitioner selected one of these answers, "F-9," and

received credit for answering the question correctly.

44. Each of the foregoing questions (Questions 6, 8, 13, 20, 28 and 53 of

Division A, Question 14 of Division E, and Questions 21 and 123 of Division H)

was clearly and unambiguously worded, provided sufficient information to select

a correct response and required the application of knowledge that a qualified

candidate for licensure as a registered architect should possess.

CONCLUSIONS OF LAW

45. Any person seeking to be licensed as a registered architect in the

State of Florida must apply to the Department of Business and Professional

Regulation to take the licensure examination. Section 481.209(1), Fla. Stat.

46. The licensure examination consists of nine parts or divisions:

Division A (Pre-Design); Division B (Site Design); Division C (Building

Design); Division D (Structural Technology: General); Division E (Structural

Technology: Lateral Forces); Division F (Structural Technology: Long Span);

Division G (Mechanical, Plumbing, Electrical and Life Safety); Division H

(Materials and Methods); and Division I (Construction Documents and Services).

Rules 61G1-14.001 and 61G1-14.002, Fla. Admin. Code.

47. Divisions A, D, E, F, G, H, I, and part of Division B are machine

graded, multiple choice examinations. Rule 61G1-14.003(1), Fla. Admin. Code.

47. For each of these divisions, a passing score is 75 or greater. Rule

61G1-14.004(1), Fla. Admin. Code.

48. Following the examination, applicants are entitled to review their

examination answers, the examination questions and the grading key. Rule 61G1-

14.005, Fla. Admin. Code.

49. Applicants who have a failing score and believe that an error was made

in the grading of their examination may request a hearing pursuant to Chapter

120, Florida Statutes. Section 455.229, Fla. Stat.

50. The burden is on the applicant at hearing to establish by a

preponderance of the evidence that his examination was erroneously or improperly

graded. See Harac v. Department of Professional Regulation, Board of

Architecture, 484 So.2d 1333, 1338 (Fla. 3d DCA 1986); Florida Department of

Health and Rehabilitative Services v. Career Service Commission, 289 So.2d 412,

414 (Fla. 4th DCA 1974).

51. In the instant case, Petitioner requested a hearing to contest the

failing scores he received on Divisions A, E and H of the licensure examination

for architects administered in June of 1994. His challenge is directed to the

grading of his answers to Questions 6, 8, 13, 20, 28 and 53 of Division A,

Question 14 of Division E, and Questions 21 and 123 of Division H.

52. The record reveals that, despite Petitioner's belief to the contrary,

he has already been given credit for his answer to Question 123 of Division H.

53. With respect to the other questions at issue, Petitioner has failed to

show that any of these questions was unclear, ambiguous or in any other respect

unfair or unreasonable, nor has he demonstrated that he was erroneously or

improperly denied credit for his answers to these questions. Accordingly, in

declining to award him credit for his answers to these questions, those grading

his examination did not act arbitrarily or without reason or logic.

54. In view of the foregoing, Petitioner's challenge to the failing scores

he received on Divisions A, E and H of the licensure examination for architects

administered in June of 1994, is without merit and therefore no adjustment

should be made to these scores.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

hereby

RECOMMENDED that the Board of Architecture enter a final order rejecting

Petitioner's challenge to the failing scores he received on Divisions A, E and H

of the licensure examination for architects administered in June of 1994.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of

April, 1995.

___________________________________

STUART M. LERNER

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of April, 1995.

ENDNOTES

1/ Petitioner conceded at hearing that his answer to Question 20 of Division A

was incorrect.

2/ At hearing, Petitioner acknowledged that his answer to Question 14 of

Division E was wrong.

COPIES FURNISHED:

Eugenio Palenzuela

13282 Southwest 119th Terrace

Miami, Florida 33186

William M. Woodyard, Esquire

Assistant General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0750

Angel Gonzalez, Executive Director

Board of Architecture

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Linda Goodgame, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended

order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period of time within which to

submit written exceptions. You should contact the agency that will issue the

final order in this case concerning agency rules on the deadline for filing

exceptions to this recommended order. Any exceptions to this recommended order

should be filed with the agency that will issue the final order in this case.