STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SAMUEL SCARDINO, )

)

Petitioner, )

)

vs. ) CASE NO. 84-2647

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF OPTOMETRY, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case on October 29, 1984, at Tallahassee, Florida, before Thomas C. Oldham, Hearing Officer.

APPEARANCES

For Petitioner: G. Steven Pfeiffer, Esquire

Laramore and Clark, P.A.

325 North Calhoun Street Tallahassee, Florida 32301

For Respondent: Susan Tully, Esquire

Department of Legal Affairs The Capitol

Tallahassee, Florida 32301 ISSUE PRESENTED

Whether Petitioner is entitled to retake Part II of the state examination for licensure of an optometrist pursuant to Chapter 463, Florida Statutes.

This case arises out of Respondent's provisional denial of Petitioner's request to take the 1984 reexamination for licensure as an optometrist.

Respondent based its proposed denial on the fact that Petitioner had not taken the national examination within five years prior to the application for reexamination, and that therefore he was ineligible to retake the state examination. After requesting a Section 120.57(1) hearing on the proposed denial, Petitioner thereafter filed a rule challenge under Section 120.56, Florida Statutes, challenging as a rule Respondent's non-rule policy requiring that applicants for reexamination must have passed all portions of the National Board examination within five years prior to the filing of the said application.

At the hearing, Petitioner testified in his own behalf and called Mildred Gardner, Executive Director of the Board of Optometry, as a witness. Petitioner presented 12 exhibits in evidence and and Respondent submitted 1 exhibit.

The parties have submitted post-hearing findings of fact pursuant to Section 120.7(1)(b)4, Florida Statutes. A ruling on each proposed finding of

fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial, or unnecessary.

FINDINGS OF FACT

1. Petitioner Samuel Scardino is an optometrist who is currently licensed as such in the states of California, Illinois, Kentucky, and Michigan. He graduated from the Illinois College of Optometry in 1978, and successfully passed all parts of the National Board of Optometry examination in the same year. He has been a practicing optometrist in Battle Creek, Michigan, since 1978. (Testimony of Petitioner, Petitioner's Exhibit 4)

   
   

2. By application dated May 10, 1983, Petitioner applied to take the Florida optometry examination. His application was received by Respondent on May 13, 1983. Petitioner's application was approved pursuant to Respondent's Rule 21QER83-1 which amended Rule 21Q-4.01, Florida Administrative Code, on May 19, 1983, to provide that an applicant must have obtained a qualifying score on the national examination within five years prior or two years subsequent to the date of passage of the state examination. It also provided that a passing score of 75 must be obtained on the pharmacology section of the national examination in 1983, or subsequent thereto, within five years prior or two years subsequent to passage of the state examination. By letter of May 18, 1983, Respondent acknowledged receipt of Petitioner's application and $250.00 fee, but indicated that the application was incomplete in that a final transcript must be sent by his school, and also that the National Board report of passing grades within the past five years and the pharmacology section in 1983 with a score of 75 or above were required. Petitioner complied with these requirements and received an admission card for the optometry examination to be held in July of 1983. Petitioner took the examination at that time and received notice in September 1983 that he had failed the pharmacology/pathology portion of Part II of the examination with a grade of 61. A review of Petitioner's objections to the grade resulted in a further letter from Respondent, dazed December 23, 1983, which advised Petitioner that the Board of Optometry review committee had reviewed the matter and changed his final grade for the pharmacology/pathology portion of the examination from 61 to 65, but that a final grade of 70 percent or better was required to achieve a passing status. He was thereupon advised of his right to a hearing under Section 120.57, Florida Statutes. (Testimony of Petitioner, Petitioner's Exhibit 1, 5-8, Respondent's Exhibit 1)

   
   

3. On March 19, 1984, Petitioner filed an application for optometry reexamination with the Respondent, together with the $250.00 reexamination fee. The state application form for reexamination did not ask for any information concerning the National Board of Optometry examination, as did the original application form. Respondent's Rule 21Q-4.02, Florida Administrative Code, pertaining to reexamination, provided pertinently as follows:

   
   

   21A-4.02 Reexamination.--

   1. An applicant who fails either Part I or Part II of the state examination for licensure shall be required to retake only that part of the examination on which he failed to achieve a passing grade, provided that the applicant shall be limited to two retakes within a two year period from the date of original failure. If the applicant fails to achieve a passing grade as provided above, he shall be required

      to take the complete state examination for licensure in order to be entitled to be licensed as an optometrist. Reexamination shall be conditioned on payment of the reexamination fee.

      
      

      Respondent advised Petitioner by an undated letter which he received on April 7, 1984, that his National Board scores were no longer valid to take the Florida examination since they had been obtained more than five years prior to his application to take the 1984 examination. The letter further stated that 1983 was his last year of eligibility for examination under his 1978 National Board scores and that he had not been successful in his 1983 Florida examination. The letter enclosed an application for refund of his $250.00 fee for the 1984 examination. Petitioner thereafter spoke with the Executive Director of the Board of Optometry who indicated that the Board would be evaluating his and other questions of candidates at their May 4, 1984 meeting. (Testimony of Petitioner, Gardner, Petitioner's Exhibits 2, 9, 11)

      
      

4. The minutes of a meeting of the Board of Optometry on May 3, 1984, contains the following item:

   
   

   Examination 1984 - After discussion with Board Counsel, the Board reiterated that Examination candidates must have passed all parts of the National Board within 5 years prior to application to take the Florida examination in order that all candidates who pass the Florida examination are immediately eligible to apply for licensure. Any candidate who applies to retake the Florida examination must also meet the requirements of passing the National Board within 5 years of applying to retake the Florida examination. All requirements of

   21Q-4.01 apply to all candidates and no waiver of requirements shall be granted. Motion by Dr. Walker, seconded by Mrs. Chambers. Passed unanimously.

   
   

   The Board's Executive Director advised Petitioner of the action taken by the Board in a letter of May 14, 1984. He was also informed by this letter that if he completed the National Board requirements prior to the 1985 examination and applied for such examination, he would be required only to take the practical portion of Part II of the Florida examination, but that if he were not licensed in 1985, he would be required to take the entire Florida examination. After receiving the letter, Petitioner submitted his application for refund of the

   $250.00 reexamination fee which was approved on April 4, 1984 and thereafter paid to Petitioner. By Petition dated June 19, 1984, Petitioner requested an administrative hearing to contest the Respondent's denial of his application to retake the Florida optometry examination which was scheduled for August 1984.

   The instant rule challenge was subsequently filed in September 1984. (Testimony of Petitioner, Gardner, Petitioner's Exhibit 10)

   
   

5. The policy statement announced by the Board at its May 3, 1984, meeting that applicants for reexamination must have passed the National Board

   examination within a period of five years prior to such application was first applied in 1984 and was uniformly applied to all applicants for reexamination who had not taken the National Board examination within the requisite period prior to application. (Testimony of Gardner)

   
   

   CONCLUSIONS OF LAW

   
   

6. Petitioner seeks approval of his application for reexamination pursuant to Rule 21Q-4.02, Florida Administrative Code. The stated basis for Respondent's proposed denial of his application, i.e., that his National Board scores were no longer valid to take the Florida examination since they had been obtained more than five years prior to his application for reexamination was held invalid by Final Order this date in DOAH Case No. 84-3289R as constituting an additional requirement for reexamination and therefore a rule which was invalid because it had not been promulgated in accordance with the procedures of Section 120.54, Florida Statutes.

   
   

7. Respondent's Rule 21Q-4.02 permits an applicant who fails either part of the state examination for licensure to take only that part on which he failed to achieve a passing grade. The reexamination is conditioned upon payment of a reexamination fee. This condition was met by Petitioner. The other condition stated in the rule is that the applicant is limited to two retakes within a two- year period from the date of original failure. Petitioner applied to retake the examination within the prescribed period. Accordingly, it is clear that he met all requirements to retake the state examination in 1984 and that his application should have been approved. Inasmuch as the 1984 state examination has already been administered, Petitioner is obliged to wait until the 1985 Florida examination is given to demonstrate whether he possesses the necessary qualifications for licensure.

   
   

8. Respondent's contention that Petitioner should not be deemed eligible to have retaken the examination in 1984 due to the fact that he did not meet the five-year requirement for original applicants to take the state examination as prescribed in Rule 21A-4.01(1)(a) is without merit. That rule makes no reference to reexamination. Also, Respondent's form application for reexamination makes no reference to the National Board examination or the five- year requirement. It is thus concluded that the two rules should not, as contended by Respondent, be read in pari materia, for the purpose of adding another requirement. Rather, the language of Rule 21A-4.02 indicates that the reexamination is simply a continuing part of the original examination process in which Petitioner remains qualified in all respects except for his partial failure.

In view of the foregoing, it is

RECOMMENDED that Petitioner's application for reexamination be approved.

DONE and ENTERED this 18 day of December, 1984, in Tallahassee, Florida.

THOMAS C. OLDHAM

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 18th day of December, 1984.

COPIES FURNISHED:

G. Steven Pfeiffer, Esquire Laramore and Clark, P.A.

325 North Calhoun Street Tallahassee, Florida 32301

Susan Tully, Esquire Department of Legal Affairs Tallahassee, Florida 32301

Fred M. Roche, Secretary

Department of Professional Regulation

130 North Monroe street Tallahassee, Florida 32301

Mildred Gardner, Executive Director Board of Optometry

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 84-002647

Orders for Case No: 84-002647