Judges: WILLIAM C. SHERRILL
Agency: Department of Health
Latest Update: Jul. 10, 1987
Summary: Petitioner failed to prove podiatry exam was improperly graded, unfair, or that he earned a passing grade. Relief denied.
87-1725STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DARALL JEROME MOORE, )
)
Petitioner, )
)
vs. ) CASE NO. 87-1725
)
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF PODIATRY, )
)
Respondent. )
)
RECOMMENDED ORDER
The formal administrative hearing in this case was held on June 8, 1987, in St. Petersburg, Florida. Appearing for the parties were:
For the Petitioner: Darall Jerome Moore, Pro Se
5455 27th Street South, Apartment 87 St. Petersburg, Florida 33712
For the Respondent: Chester G. Senf, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
At issue in this case is whether the Respondent's 1986 podiatry examination of the Petitioner was fair and proper.
The Petitioner presented his own testimony and six exhibits, four of which were admitted into evidence. The Respondent presented the testimony of Ms. Ella Hall and two exhibits which were admitted into evidence. There is a transcript. Both parties submitted proposed findings of fact and conclusions of law.
FINDINGS OF FACT
The Petitioner, Darall J. Moore, graduated from the Ohio College of Podiatric Medicine in 1983 with a D.P.M. degree. T. 10.
The Petitioner took the podiatry examination in July 1986, and did not receive a passing grade.
On October 1, 1986, the Petitioner conducted a review of his examination. He arrived at 8:30 a.m. and left the review session at 1:30 p.m.
R. Ex. 1. The review was conducted pursuant to the procedures outlined in P. Ex. 1, a copy of which was provided to the Petitioner by the Respondent before the review took place. The purpose of the review was to give the Petitioner an opportunity to examine the answer key and the questions asked on the examination, and to note in writing (on challenge sheets provided) his objections to the grading of particular questions by number.
The procedure for examination review also provided that:
Candidates may not copy any material provided for the review. No reference materials or electronic recording or photographic equipment may be brought into the review. No material may be taken out of the review. All reviews are subject to Departmental security requirements in order to insure the integrity of the examination.
The review session on October 1, 1986, was conducted in a small room. The room was used by other people as well, and during the review there were conversations of people, phones ringing, and people coming in and out. Nonetheless, there does not appear to be any direct evidence that these distractions substantially impaired the Petitioner's ability to review his examination.
During the review, the Petitioner submitted challenges to 20 examination questions by number. R. Ex. 1. Each of these written challenges identifies the examination question by number and provides a space for comments concerning the challenge.
The procedure for examination review and challenge provides in part that "[a]ll objections must be submitted within sixty (60) days from the date of your request for a review. Objections will be analyzed by a committee of the Board of Podiatry and you will be notified of any decision." P. Ex. 1. (E.S. in original.)
Before the review took place, the Petitioner was informed that he had a right "to appeal" from the "results" of his examination review. The "appeal" was to be initiated within thirty (30) days of his "receipt of . . . examination review results." The "appeal" was to contain specific reasons for the challenge, including why the Petitioner was "appealing," "what actions of the examiner(s) were unfair, and any objections made at your review." P. Ex. 1. (E.S. in original.)
The Petitioner timely requested a formal administrative hearing.
At the formal administrative hearing, the Petitioner presented evidence concerning five examination questions. T. 30. None of this evidence was by expert testimony, but the Petitioner referred to expert treatises in the field.
The first question was to state the nerve located around the neck of head of the fibula. T. 30. Petitioner contends that his answer to the question, the common peroneal, is correct. Id. This question is not discussed or objected to in the written exam item challenges prepared by the Petitioner at the review session on October 1, 1986. R. Ex. 2; T. 71.
The second question challenged at the hearing by the Petitioner was "what dorsal cutaneous nerve communicates with the sural nerve." T. 44, 45. The Petitioner contends that the correct answer to this question, his answer, is the lateral dorsal cutaneous nerve. Id. This question is not discussed or objected to in the written exam item challenges prepared by the Petitioner at the review session on October 1, 1986. R. Ex. 2; T. 71.
The third question challenged by the Petitioner at the hearing was "what is the largest reservoir of blood in the body." T. 46. The Petitioner contends that his answer, the veins, is the correct answer. T. 47. This question is not discussed or objected to in the written exam item challenges prepared by the Petitioner at the review session on October 1, 1986. R. Ex. 2; T. 71.
The fourth question challenged by the Petitioner at the hearing was what is the characteristic of metatarsus adductus. T. 48. The Petitioner contends that his answer, "styloid process, prominent styloid process, based on the concave in the concavity being reversed," is the correct answer. T. 49. This question is not discussed or objected to in the written exam item challenges prepared by the Petitioner at the review session on October 1, 1986. R. Ex. 2; T. 71.
The fifth question challenged by the Petitioner at the hearing was never clearly stated by the Petitioner, but concerned "pathopneumonic of gouty arthritis." T. 49. The Petitioner never clearly identified the answer that he gave, but contended that his answer was partially right and that there was no other answer that he could have chosen. T. 49-50. It appears that this question was discussed and objected to in the written exam item challenges prepared by the Petitioner at the review session on October 1, 1986. R. Ex. 2, question 88. However, since the Petitioner never clearly demonstrated what the question was, or what the answer was, the testimony of the Petitioner was too unclear for there to be a finding that the answer he gave to the question was correct.
The Petitioner admitted that during the review session (see R. Ex. 2) he did not provide the Respondent with all of the questions to which he had objections. T. 38.
The Petitioner did not provide the Respondent with written objections to the first four questions discussed above within sixty (60) days of the review, and indeed, did not provide any such notice to the Respondent until the formal administrative hearing began.
There is no evidence that the Petitioner would have passed the examination if the Respondent accepted his answer to the fifth question.
The Petitioner testified that his ability to prepare for this hearing was impaired because he was not allowed to take anything into the review session and was not permitted to take anything out of the review session. He states that he could not adequately prepare for the hearing because he did not have references during the review session, and did not have a copy of the questions objected to in the review session or a copy of the examination for use at the hearing. The Petitioner represented himself without representation of a lawyer. There is no evidence that the Petitioner knew about the procedures for conducting discovery prior to a formal administrative hearing, and there is no evidence that prior to the hearing he sought any discovery of the written objections he made during the review session or of the examination questions.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of this case.
With the exception of one question, the Petitioner did not present evidence as to the questions he objected to at the review session. The
questions objected to at the review session and listed on Respondent's Exhibit 1 are the only questions which have been submitted to the Respondent as having been erroneously graded and which have been rejected by the Respondent in free form agency action. Four of the questions the Petitioner raised as issues at the formal administrative hearing had never been previously presented to the Respondent for consideration. Thus, the Respondent has not had an opportunity to consider objections to those questions, and therefore has not rejected objections to those questions.
Pursuant to the Respondent's procedures, which were provided to the Petitioner, the Petitioner was to have given the Respondent notice as to the questions to which objection was made, thus giving the Respondent an opportunity to review those questions and either agree with the Petitioner or disagree. The Respondent's procedures also stated that if the Petitioner wished to be afforded a formal administrative hearing, his letter requesting a hearing (termed an "appeal" in the procedures) was to have contained "any objections made at your review." P. Ex. 1. By not making objections to the four questions presented at the formal administrative hearing, and by not stating those objections in the letter requesting a formal hearing, the Petitioner waived his opportunity to make those objections. Thus, all evidence concerning these four questions was irrelevant to this case as a matter of law.
The fifth question was one that previously had been raised during the review session, but the Petitioner did not clearly prove that the question had been erroneously graded or that credit for a correct answer to that question would have caused him to pass the examination.
Thus, the Petitioner has failed to prove that his 1986 examination was incorrectly graded.
The Petitioner has not proven that the review process was so unfair as to deny him an adequate opportunity to obtain a fair formal administrative hearing to contest the grading of his examination. It is not unreasonable to require that the applicant review his examination questions without assistance from expert references since he could have lodged an objection as to every question even remotely suspected of having been erroneously graded, thereby preserving his right at the formal administrative hearing to broadly contest the examination with the assistance of expert opinion. The Petitioner's assertion that it was unfair to refuse to allow him to take a copy of the examination questions from the review session, or a copy of his objections, would have some merit if the Petitioner had been unable to conduct normal discovery prior to the formal administrative hearing. But pursuant to normal rules of discovery, well before the formal administrative hearing the Petitioner could have obtained a copy of the questions to which he had objections and a copy of his objections in order to prepare for the hearing. His failure to ask for a copy appears to have occurred simply because he was not represented by a lawyer and did not understand how to represent himself. While the result is harsh, however, there is no remedy for the failure far of a self-represented person to understand the rules of procedure governing the hearing and to use the opportunities for preparation afford by such rules.
RECOMMENDATION
For these reasons, it is recommended that the Department of Professional Regulation, Board of Podiatry, enter its final order finding that the Petitioner, Darall Jerome Moore, has not proven by a preponderance of the evidence that his 1986 examination for licensure as a Podiatrist was improperly
graded, that the procedures for review of his examination were unfair, or that he should be given a passing grade on the 1986 examination.
DONE and ENTERED this 10th day of July, 1987.
WILLIAM C. SHERRILL,
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 10th day of July, 1987.
APPENDIX TO RECOMMENDED ORDER IN CASE NUMBER 87-1725
The following are rulings upon findings of fact proposed by the parties, by number, which have been rejected.
Findings of fact proposed by the Petitioner:
1. The record does not contain evidence (testimony or exhibits) to allow any conclusion as to the numerical grade received by the Petitioner. Thus, the finding proposed that the grade was 71.9 is rejected.
There is insufficient evidence that the distractions during the review in fact substantially impaired the ability of the Petitioner to review the examination. The Petitioner did not testify that the noise or traffic caused him to be unable to concentrate or to fail to review the entire exam. See T. 28-29. The Petitioner completed twenty objections and left at 1:55 P.M., three hours before 5:00 P.M.
The first sentence is rejected as not relevant. The Petitioner did not present any evidence to show how he was caused to be unable to prepare his case due to the scheduling of the hearing. It is officially recognized that the case was set for final hearing to commence August 10, 1987, by an order dated and entered May 1, 1987, and that the hearing date was changed to June 8, 1987, at the request of an attorney, Marc A. Tenney, received May 4, 1987. For these reasons, the second sentence is also rejected.
Rejected for the reasons set forth in conclusions of law 2-4.
The finding that it was very difficult to prepare for final hearing is rejected in finding of fact 19 and conclusion of law 6.
Rejected in finding of fact 19 and conclusion of law 6.
These findings are rejected in finding of fact 19 and conclusion of law
6.
Rejected in findings of fact 11 through 14.
Rejected in findings of fact 11 through 14.
Findings of fact proposed by the Respondent:
2. The second sentence is rejected for lack of evidence in the record.
COPIES FURNISHED:
Marcelle Flanagan Executive Director Board of Podiatry
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
Van Poole, Secretary
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
Joseph A. Sole, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
Darall Jerome Moore, D.P.M. 5455 27th Street South, Apt. 87 St. Petersburg, Florida 33712
Chester G. Senf, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
Docket for Case No: 87-001725
Orders for Case No: 87-001725
| Issue Date |
Document |
Summary |
|
Oct. 06, 1987 |
Agency Final Order
|
|
|
Jul. 10, 1987 |
Recommended Order
|
Petitioner failed to prove podiatry exam was improperly graded, unfair, or that he earned a passing grade. Relief denied.
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