STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PATRICIA COLLINS, )

)

Petitioner, )

)

vs. ) CASE NO. 80-1452

) STATE OF FLORIDA, DEPARTMENT OF ) PROFESSIONAL REGULATIONS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, Sharyn L. Smith, held a public hearing in this case on November 6, 1980, in Melbourne, Florida.

APPEARANCES

For Petitioner: Edward L. Trader, Esquire

903 East Strawbridge Avenue Melbourne, Florida 32901

For Respondent: Tina Hipple, Staff Attorney

Department of Professional Regulation 2009 Apalachee Parkway

Tallahassee, Florida 32301

On July 31, 1980, the State of Florida, Department of Professional Regulation (hereafter Department) forwarded to the Division of Administrative Hearings, pursuant to the provisions of Section 120.57(1)(b)(3), Florida Statutes, a petition contesting the validity of a failing grade received by the Petitioner on a nursing home administrator's examination. The petition alleged that the procedures utilized during the exam) nation resulted in the Petitioner failing the exam and that because of this, the exam should be regraded.

FINDINGS OF FACT

1. On April 8, 1980, the Petitioner sat for a nursing home administrator's examination in Tallahassee, Florida.

   
   

2. The Petitioner had prepared for the exam and although somewhat nervous was confident that she would pass.

   
   

3. When the Petitioner was approximately 1-1/2 hours into the exam, she discovered that she had been issued a faulty test booklet. The Petitioner noticed this when questions began to repeat on the examination and discovered that the exam contained duplicate pages.

4. The Petitioner requested a new exam which as provided by a proctor who noted the problem with the examination book on a cover page.

   
   

5. Following this incident, the Petitioner went back to the beginning of the exam and checked her previous answers against the new exam questions.

   
   

6. The confusion and problems with the exam resulted in the Petitioner becoming extremely nervous and agitated. After sitting in her chair for a time, the Petitioner was able to resume the exam, although she was still in a disrupted stated.

   
   

7. On May 12, 1980, the Petitioner received notice from the Department that she had made a 74 on the exam with 75 being a passing score.

   
   

8. The Petitioner immediately requested that the exam materials including the two examinations and answer sheets be provided to her for purposes of review.

   
   

9. The original examination booklets were not available to the Petitioner and have not been produced for the hearing due to their destruction immediately following the exam. The cover of the faulty booklet has been provided on which the note "Faulty booklet-excess pages", appears.

   
   

10. The answer sheet provided at the hearing shows that the examination consisted of 150 multiple choice questions. On the first half of the exam, (number 1-75) Petitioner missed 16 questions while on the last half (number 75-

    150) Petitioner

    
    

11. Had it not been for the confusion over the exam and its undisputed negative effect on Petitioner she could have been expected to pass the exam based upon the score she received on the first half of the test.

    
    

12. The cost of taking the first exam was $200.00 and Petitioner would be required to pay another $200.00 to be reexamined.

    
    

13. Petitioner is familiar with the nursing home business and has a position available to her pending the outcome of this proceeding.

    
    

14. The examination is a national exam which was not prepared by the Department.

    
    

    CONCLUSIONS OF LAW

    
    

15. In essence, the Petitioner in this proceeding has alleged unfair treatment in the conduct of the administration of a state licensing exam. Because of the problem with the erroneous test book, the Petitioner states that her score should be adjusted by one point to reflect a passing grade.

    
    

16. In York v. State ex rel. Schwcaid, 10 So.2d 813 (Fla. 1943) an unsuccessful examinee sued the State Board of Dental Examiners alleging unfair treatment in the administration of a state licensing exam. The examinee also requested the Board to produce examination papers and tally sheets as required by law. Due to unexplained reasons, the Board was either unwilling or unable to produce all of the examination papers requested. In affirming the trial courts issuance of a writ of mandamus which ordered the exam regraded and the licensee issued a license, the Court stated:

    In the main, the factors on which ap- pellee predicted his charge of un- tair treatment or grading were or should have been available to appel- lants and when the charge was lodged against them, it was their duty to come forward and make a clean breast of what they had. The law requires them to keep the examination papers for a period of two years and when unfair charges as to grading have been made, they should come forward with the papers and offer to disprove the charge or make provision for re- grading if necessary. There could

    be no other reason for preserving such records and if that course had been pursued, the case would not have reached this Court.

    
    

    The conduct of an administrative board toward those with whom it deals should be so fair that there is no ground to invite suspicion. It certainly will not be permitted to withhold evidence that the law re- quires it to keep from those who are entitled to have it and then say you did not prove your case. Adminis- trative regulations are binding on those affected by them only when pro- mulgated in due course. They will not be permitted to be used in an

    ex post facto manner as charged in this case. Fairness to the indivi- dual is the sine quo non of all legal procedure in a democracy like ours.

    
    

    Similarly, in the instant case, the actual examination booklets used by the Respondent were not retained as required by Section 455.217(3), Florida Statutes. Also compare Section 119.07(3) (c), Florida Statutes. However, the answer sheet which was made available demonstrates that the Petitioner failed the exam because of her score on that portion of the exam completed after the confusion arose over the test booklet.

    
    

17. Petitioner was not treated on the same basis and subjected to the same conditions as all other persons taking the exam as required by law. Accordingly it does not follow that her exam should be graded on the same basis as all other examinees. Under such circumstances and consistent with the result in York, supra, the Petitioner's grade should therefore be adjusted to either 75 or regraded on the basis of the first 75 questions. Also see Civil Service Board v. Tanner, 781 So.2d 595 (Fla. 3rd D.C.A. 1965).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Petitioner's exam be regraded to reflect either a passing grade of

75 or the grade she would have received on the basis of the first 75 questions.

DONE and ORDERED this 13th day of November, 1980, in Tallahassee, Florida.

SHARYN L. SMITH, 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 13th day of November, 1980.

COPIES FURNISHED:

Tina Hipple Staff Attorney

Department of Professional Regulation

2009 Apalachee Parkway

Tallahassee, Florida 32301

Edward L. Trader, Esquire 903 E. Strawbridge Avenue Melbourne, Florida 32901

Docket for Case No: 80-001452

Orders for Case No: 80-001452