STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

YU-CHYUAN WANG, )

)

Petitioner, )

)

vs. ) CASE NO. 86-1489

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF ACUPUNCTURE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings by duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on July 9, 1986, at Lakeland, Florida.

APPEARANCES

For Petitioner: Thomas J. Patka, Esquire

Julia S. Waters, Esquire Holland & Knight

Post Office Drawer BW Lakeland, Florida 33502

For Respondent: H. Reynolds Sampson, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

By Petition for Administrative Hearing dated April 30, 1986, Yu-Chyuan Wang, Petitioner, contests the failing grade he received on the examination for licensure as an acupuncturist which he sat for July 5, 1985. As grounds therefor it is alleged that Petitioner received a failing grade in only Part I of the examination entitled Laws and Rules and that his failure to pass this portion of the examination was due to Respondent failing to include all of the required material in the study packet provided to examinees.

In the Petition it is requested that Petitioner be given a passing grade without requiring Wang to retake the examination or, in the alternative, that Respondent waive the re-examination fee if Wang chooses to sit for the July 1986 examination. At the hearing Petitioner withdrew his demand that he be given a passing grade in Part I of the examination and now seeks only a waiver of the examination fee.

Thereafter Petitioner called three witnesses including himself, and eight exhibits were admitted into evidence.

Proposed findings have been submitted by the parties. Treatment accorded those proposed findings is contained in Appendix A attached hereto and made a part hereof.

FINDINGS OF FACT

1. Petitioner applied to take the acupuncture examination given October 30

   - November 3, 1984, but his application was not approved until he provided additional verification of his experience. By the time his approval was granted it was too late for the 1984 examination and he was advised to apply for the July 1955 examination which he did.

   
   

2. In 1984 Petitioner was sent Applicant Information for Acupuncture Examination document (Exhibit 5) which indicates copies of Florida Statutes Chapters 389 and 457 and the rules applicable to each chapter are attached. Petitioner acknowledges receiving certain information but does not recall exactly what he received.

   
   

3. When Petitioner re-applied to take the 1955 examination he received certain material from Respondent containing the statutes and rules from which the examination questions on Laws and Rules would be taken. Petitioner contends he received only the information contained in Exhibit 3 which consists of Chapter 457 Florida Statutes (1983) and Chapter 21AA Florida Administrative Code.

   
   

4. After taking the examination and finding unfamiliar questions in Part I of the examination, Petitioner discovered the documents from which he studied did not have applicable provisions of Chapter 389 and rules pertaining thereto in Chapter 10D-81 Florida Administrative Code. When he subsequently learned he had failed Part I of the examination Petitioner, on October 10, 1985, went to Tallahassee to check on his examination grade and to complain that he did not receive the two pages containing Chapter 389 Florida Statutes and Chapter 10D-81 Florida Administrative Code.

   
   

5. Chapter 389 Florida Statutes and Chapter 10D-81 Florida Administrative Code, which Wang did not study for the examination, consist of two pages with both sides of each page containing information and are pages 643 and 644, Florida Statutes (1981) and pages 525 and 526 Florida Administrative Code. On Part I of the examination Wang missed three of five questions taken from page 643, three out of eight questions from page 644, five out of eight questions from page 525 and four out of ten questions from page 526.

   
   

6. Part I consisted of fifty questions and of those fifty questions Wang missed fifteen from the statutes and rules he did not study for the examination. Clearly his failure to study those pages was the primary cause of Wang receiving a failing grade of 66 on Part I of the examination.

   
   

7. Ann Mayne is Administrative Assistant to The Board of Acupuncture and two other boards. She is the only one who mails out material to applicants and in her absence requests for such material are held pending her return.

   
   

8. In October 1985 when Petitioner went to Tallahassee Ms. Mayne was on vacation. Petitioner first went to the Department of Professional Regulation and was referred to the acupuncture office in an adjacent building. There he contacted a clerk who attempted to help him and gave him the two pages (Exhibit

   4) he alleged he did not have.

9. Ms. Mayne sends out all information to applicants for acupuncture license. She prepared the Application Information Sheet (Exhibit 5) and the copies of statutes and rules pertaining to acupuncture. Ms. Mayne keeps this information in a file cabinet with the pages separated so all of the same page are together. When she prepares an information package she goes through the file drawer and takes out one sheet from each of the divisions and thereby compiles a complete package. These sheets are not stapled together but are put in an envelope and mailed to the applicants.

   
   

10. In 1985 Wang was not sent a copy of the information sheet (Exhibit 5) but Ms. Mayne put a note in his file that he had been sent the 1985 packet of laws and rules. Because there had been a change in Chapter 457 between the 1984 and 1985 examination she wanted to be sure a copy of these new provisions was sent to Wang. The copy Wang acknowledges he received (Exhibit 3) contains Chapter 457 Florida Statutes and Chapter 21AA Florida Administrative Code. If, as contended by Wang, the packet he received for the 1985 examination did not contain relevant portions of Chapter 359 Florida Statutes and Chapter 10D-81, Florida Administrative Code, the packet he received in 1984 did contain those sections and there was no change in those laws and rules between the 1984 and 1985 examinations.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

12. Petitioner contends that his failure to pass the examination was due to Respondent's negligence in not mailing to him copies of all applicable statutes and rules for which the examination questions in Part I of the examination were taken. Respondent contends that copies of all pertinent statutes and rules were forwarded to Petitioner.

    
    

13. Nowhere has Petitioner alleged a duty on the part of Respondent to provide this material to all examinees and a corresponding right of every examinee to receive it. Neither statute nor rule addresses this matter. Accordingly, there is no legal duty imposed on the Respondent to provide examinees with copies of statutes and rules from which the examination questions in Part I will be taken.

    
    

14. In the material Petitioner acknowledges he received (Exhibit 3) Rule 21AA-3.02(2)(a), Florida Administrative Code, which provides:

    
    

    The following subject areas will be tested in Part I.

    1. State laws and rules relevant to acupuncture clinics and to the practice of Acupuncture.

    2. Health and Safety Requirements.

       
       

15. State Statutes and Rules are widely disseminated and are available in many, if not most, public libraries. By advising Petitioner of the subject areas on which he could be tested, Respondent complied with any duty it may have had in this regard.

    
    

16. However, even if prior actions of Respondent in sending copies of applicable statutes and rules to all examinees constituted the assumption of the duty by Respondent to provide all examinees with this material, the evidence is

    in equipoise as to whether Respondent fulfilled this duty. Petitioner testified he studied the material he received from Respondent and his studying did not include the four critical pages. He did not check the material he received with the information sheet (Exhibit 5) which he had received just prior to the October 1984 examination or with the documents he also received at that time.

    Respondent's witness, who is the only state employee who sends information to acupuncture applicants, follows a fixed procedure in assembling documents she sends to acupuncture applicants and put a note in Wang's file that copies of applicable statutes and rules had been sent to him.

    
    

17. Here Petitioner has the burden of proving Respondent had a duty to provide him with all applicable material and breached that duty; that as a result he failed Part I of the

NOTE: INFORMATION MISSING FROM ACCESS PROJECT ORDER.

The burden of proof is on the party requesting the license, variance or other relief. Florida Department of Transportation v. JWC Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981). An administrative tribunal measures proof presented to it by preponderance of the evidence standard. Bolino v. Department of Health and Rehabilitative Services, 248 So.2d 249 (Fla. 1st DCA 1977). It is not satisfied by proof creating an equipoise but it does not require proof beyond a reasonable doubt. Florida Department of Health and Rehabilitative Services v. Career Service Commission, 289 So.2d 412 (Fla. 4th DCA 1974).

From the evidence presented Petitioner has failed to prove that Respondent had a duty to provide him with copies of the statutory and rule material from which Part I questions would be taken. Even if Petitioner could show Respondent had such a duty he has failed to prove, by a preponderance of the evidence, that Respondent breached that duty, especially since the material was forwarded to Petitioner prior to the 1984 examination if not also forwarded to him for the 1985 examination.

From the foregoing it is concluded that Yu-Chyuan Wang has failed to prove, by a preponderance of the evidence, that Respondent had a duty to provide him with copies of all applicable statutes and rules; that the Respondent breached that duty; and that, as a result, Petitioner failed to pass Part I of the examination to be licensed to practice acupuncture. It is

RECOMMENDED that the Petition of Yu-Chyuan Wang be dismissed. ENTERED this 29th day of July, 1986, at Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 1986.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1489

Treatment accorded Petitioner's proposed findings.

1. Not relevant.

2. Included in Hearing Officer Nos. 3 and 4.

3. Not relevant.

4. Accepted. Not an issue in these proceedings except Wang's score in Part I.

5. Accepted. Not an issue in these proceedings.

6. Included in Hearing Officer No. 4.

7. Included in Hearing Officer Nos. 8 and 9.

8. Included in Hearing Officer No. 4.

9. Accepted only insofar as contained within Hearing Officer Nos. 8 and

10. 
    

    1. Included in Hearing Officer No. 8.

    2. Not relevant. Documents received by Wang were not stapled together.

       When he took the documents to Tallahassee, they were stapled together.

    3. Accepted only insofar as contained within Hearing Officer No. 9.

    4. Not accepted insofar as inconsistent with Hearing Officer Nos. 9 and

       10.

    5. Included in Hearing Officer No. 5.

    6. Included in Hearing Officer No. 6.

    7. Accepted.

    8. Accepted.

Treatment accorded Respondent's proposed findings.

1. Included in Hearing Officer No. 2.

2. Included in Hearing Officer No. 1.

3. Included in Hearing Officer No. 4.

4. Accepted.

5. Included in Hearing Officer No. 6.

6. Included in Hearing Officer No. 5.

7. Included in Hearing Officer No. 4.

8. Included in Hearing Officer No. 8.

9. Included in Hearing Officer No. 8.

10. Included in Hearing Officer Nos. 6 and 10.

COPIES FURNISHED:

Thomas J. Patka, Esquire Julia S. Waters, Esquire Holland & Knight

Post Office Drawer BW Lakeland, Florida 33802

H. Reynolds Sampson, Esquire Department of Professional Regulation

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 General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Marcelle Flanagan, Executive Secretary Board of Acupuncture

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 86-001489

Orders for Case No: 86-001489