Judges: LINDA M. RIGOT
Agency: Department of Business and Professional Regulation
Latest Update: Apr. 25, 1986
Summary: Petitioner's contention that he had passed the acupuncture examination since he had passed all portions, although never at the same time, was rejected.
85-4094STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MAN LI CHINO, )
)
Petitioner, )
)
vs. ) Case No. 85-4094
)
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF ACUPUNCTURE, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on March 17, 1986, in Miami, Florida.
Petitioner, Man Li Ching, was represented by Sheldon L. Gottlieb, Esquire, Miami, Florida and Respondent, Department of Professional Regulation, Board of Acupuncture, was represented by H. Reynolds Sampson, Esquire, Tallahassee, Florida.
Respondent notified Petitioner that he had failed the practical portion of the 1985 acupuncture examination, and Petitioner requested a formal hearing on that failure.
Accordingly, the issue for determination is whether Petitioner successfully completed the acupuncture examination.
Petitioner testified on his own behalf, and Marcelle V. Flanagan testified on behalf of Respondent. Additionally, Petitioner's Exhibits numbered 1 and 2 and Respondent's Exhibits numbered 1 and 2 were admitted in evidence.
Although both parties were granted leave to file posthearing proposed findings of fact in the form of a proposed recommended order, only the Respondent did so. Respondent's proposed findings of fact numbered 1, 2, and 5-7 have been adopted, but Respondent's proposed findings of fact numbered 3 and 4 have been rejected as not constituting findings of fact.
FINDINGS OF FACT
Petitioner applied for and took the 1982 acupuncture examination consisting of four Parts. He failed Part I dealing with the laws and rules of the state of Florida as well as Part IV the clinical practical, or hands-on, part of the examination. He passed Parts II and III of the examination.
In 1983 the Florida legislature created the Board of Acupuncture within the Department of Professional Regulation and empowered the Board with the authority to adopt rules. Perhaps in conjunction with that transfer of authority, the 1983 acupuncture examination was cancelled, and no examination was given during 1983.
Effective August 13, 1984, the Board enacted rules regulating the examination and re-examination of acupuncturists.
In October, 1984, a restructured three-part acupuncture examination was administered. The practical Part of that examination, Part III, was divided into two sections: the written practical section and the clinical practical section. Petitioner retook Part I covering the laws and rules of the state of Florida and passed that Part of the examination. He also took the clinical practical section of Part III but was not required to take the written practical section of Part III. Petitioner again failed the clinical practical section of the examination.
In July, 1985, Petitioner retook Part III of the acupuncture examination. This time he was required to take both the written practical section and the clinical practical section of Part III. This time he passed the clinical practical section but failed the written practical section.
Respondent notified Petitioner that he had failed the practical Part of the 1985 acupuncture examination by failing the written practical section.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.
Prior to the October, 1984, examination the Board adopted Rule 21AA-3.04(4)(b), Florida Administrative Code, which provides, inter alia, that if an applicant fails either section
1 or section 2 of the practical examination (Part III), then he or she will have failed the practical examination. This provision also appears on the December 3, 1984 grade notice sent to Petitioner.
Also prior to the October, 1984, examination the Board adopted Rule 21AA-3.05(1) and (3), Florida Administrative Code, which provides as follows:
Any applicant who fails the examination shall be entitled to re-examination. Those applicants not achieving a score of 70 or better on a scale of 100 on Parts I, II and sections 1 and 2 of the practical examination will have failed that part of the examination and shall be required to retake and pass only that part failed in order to be licensed as an acupuncturist.
If an applicant fails the examination three consecutive times they must attend a tutorial and an educational program approved by the Board. At that time the applicant shall be required to take and pass the complete state examination for licensure to be licensed as an acupuncturist.
* * *
(3) NotWithstanding the provisions of 457.105, Florida Statutes, all candidates who took and failed any portion of the August 1982 acupuncture examination and all candidates who applied to take the March 1983 acupuncture examination who were qualified but failed to take the examination because it was cancelled shall be entitled to retake only the comparable portion(s) at two of the subsequent three administrations. All other applications for examination filed before July 1, 1983, shall be null and void. An applicant shall be required to be re- examined on comparable part(s) as provided in 21AA-3.04 that he/she has failed as provided in the August 1982 examination grade report.
Having failed the practical part of the examination in 1984, Petitioner was required to retake only the practical examination pursuant to the re- examination Rule 21AA-3.05(3). When Petitioner retook the practical examination in 1985 and failed one section of Part III, he failed all of Part III. Although the Board did not require Petitioner to re- take both sections of the practical examination in 1984, the rules of the Board clearly provide that the failure of one section of that practical examination deems an applicant to have failed both sections of the practical examination. Petitioner having so failed one section in 1984 required him to take both sections in 1985. His failure of one section in 1985 requires him, since he has failed the examination three consecutive times, to attend a tutorial and an educational program approved by the Board before he can again take the examination.
ll. Petitioner's argument that he has at one time or another passed each component of the examination and is, therefore, entitled to be certified is without merit and contrary to the clear language of the rules. He has also, on each occasion, failed a part of the examination and has, accordingly, failed to prove his competency to practice acupuncture. Likewise without merit is his argument that the Board is estopped from requiring him to take both sections of the practical examination in 1985 since he was not required to do so in 1984. In 1984, he was re-tested based upon the parts he failed in 1982; however, in 1985 he was re-tested based upon the part he failed in 1984. The Board cannot be estopped from applying its rules under the facts of this case.
Although Petitioner also alleges some form of waiver on the part of the Board, this argument falls under the same reasoning as Petitioner's allegation of estoppel. If any waiver exists, it exists on the part of Petitioner who voluntarily sat for both sections of the practical examination in 1985 without challenging the Board's requirement that he do so.
Petitioner further asserts that he only had three week's notice that he would be required to take both sections of the practical examination and that is why he failed. However, the requirement that he take both sections in 1985 as a result of failing one section in 1984 contained in the rules has been in effect since before he took and passed in 1984 Part I of the examination which covers the rules of the Board and is
consistent with the information provided by Respondent to him as part of both his 1982 and 1984 grade notifications. In short, Petitioner had much more than three week's notice.
Petitioner's allegation that others have been treated differently than him remains only an allegation, and no proof in support thereof was offered by Petitioner. Rather, Respondent's evidence was to the contrary.
RECOMMENDATION
Based upon the foregoing Findings of Fact and Conclusions of Law, it is,
RECOMMENDED that a Final Order be entered denying Petitioner's application for certification to practice acupuncture in the State of Florida.
DONE and RECOMMENDED this 25th day of April, 1986, at Tallahassee, Florida.
LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 1986.
COPIES FURNISHED:
Sheldon L. Gottlieb, Esquire 10700 Caribbean Boulevard
Suite 207
Miami, Florida 33189
H. Reynolds Sampson, Esquire Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
Marcelle Flanagan, Executive Director Board of Acupuncture
130 North Monroe Street Tallahassee, Florida 32301
Fred Roche, Secretary Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
Salvatore A. Carpino, Esquire Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
Docket for Case No: 85-004094
Orders for Case No: 85-004094
| Issue Date |
Document |
Summary |
|
Apr. 25, 1986 |
Recommended Order
|
Petitioner's contention that he had passed the acupuncture examination since he had passed all portions, although never at the same time, was rejected.
|
