STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLIFFORD M. SHOOKER, )

)

Petitioner, )

)

vs. ) CASE NO. 87-2912

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF CHIROPRACTIC ) EXAMINERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on September 15, 1987 in Fort Lauderdale, Florida. Thereafter, the parties were afforded leave to submit memoranda supportive of their respective positions. Respondent has submitted a proposed Recommended Order which was considered in preparation of this Recommended Order. Proposed findings which are not incorporated herein are the subject of specific rulings in an Appendix attached hereto.

APPEARANCES

For Petitioner: Clifford M. Shooker, pro se

261 East Oakland Park Boulevard Fort Lauderdale, Florida 33306

For Respondent: H. Reynolds Sampson, Esquire

Assistant General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

ISSUE PRESENTED

The issue presented herein is whether or not Petitioner's appeal of the denial of his chiropractic licensure should be sustained.

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings.

1. Petitioner was an unsuccessful candidate for the November 16, 1986, Chiropractic Licensing Examination. At the same time, Petitioner took a separate certification exam for the use of physiotherapy along with the chiropractic exam. Petitioner passes the chiropractic exam and was granted a

   license, however he failed the physiotherapy certification section of the exam. Petitioner obtained a score of 67.5 on the physiotherapy certification portion of the exam and a score of 75 is required for passing.

   
   

2. Respondent endeavored to maintain a record of the entire oral examination by use of a tape recording. A tape recordation of Petitioner's exam was attempted in this case, however questions 2-6 and part of question numbered

   7 was not recorded. Petitioner therefore restricted his challenge to questions 8, 9 and 10. Respondent has agreed and now offers Petitioner to sit for a re- exam without payment of the exam fee in order that he may demonstrate minimal competency and to have a complete record of his response if he cared to review them after sitting for the examination.

   
   

3. The oral practice examination for physiotherapy certification is an independent, subjective grading of a candidate's responses to questions asked by two graders. The graders have all been licensed to practice chiropractic for more than five (5) years in Florida and have undergone several hours of standardization training prior to examining the candidates for licensure certification. One of the techniques required of graders is that they must write their comments if they give a candidate any score less than a 3 which is a passing grade. The grade range is from 1-4. A score of 3 is assigned when a candidate demonstrates minimal competency and a score of 4 is given when a candidate demonstrate superior or expert knowledge in the subject area tested. Petitioner received a total raw score of 54 out of possible 80 which equates to 67.5% and, as stated, a score of 75% or 60 of a possible 80 points is required to pass the chiropractic oral practical examination. One examiner gave Petitioner a total score of 26 and the other examiner gave Petitioner a score of

1. (Respondent's exhibit 1).

   
   

   1. Petitioner was granted discovery of the portion of the examination that was recorded in order to secure expert testimony as to the correctness of his responses. Petitioner presented no expert testimony but instead testified himself and cross-examined the Department's witnesses. Petitioner failed to demonstrate that the grades he was assigned were devoid of logic or reason.

      
      

   2. Dr. Sandra Woodruff, a licensed chiropractor with 19 years experience and an expert in the grading of chiropractic examinations, reviewed Petitioner's examination and was present to rebut any experts that Petitioner may have sought to introduce. Dr. Woodruff originally observed the missing portions of the tape recording of Petitioner's exam and had recommended no change to Petitioner's grade.

      
      

   3. However, Dr. Woodruff considered Petitioner's responses to questions 8 and 10 to be correct and she, personally, would have given him a score of 4 on both questions. She thought however, that his answer to question number 9 should remain a 3 as he received by both graders. Petitioner should not receive a passing grade based on Dr. Woodruff's evaluation of Petitioner's entire examination. Dr. Woodruff expressed concern for the public health, safety and welfare because of the graders comments on the questions in which Petitioner received a failing grade. (Respondent's Exhibit 3). Even if Petitioner was given an additional two (2) points combined for questions 8 and 10, he would still not receive the minimum required score for passing. It is here found however that the graders correctly assigned Petitioner a score for his responses to questions 8 and 10 and failed, during the hearing, to present clear and convincing evidence to disturb such scores.

      CONCLUSIONS OF LAW

      
      

   4. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this action. Section 120.57(1), Florida Statutes.

      
      

   5. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

      
      

   6. The authority of the Respondent is derived from Chapter 460, Florida Statutes.

      
      

   7. A candidate who unsuccessfully sits for a licensure examination carry a heavy burden in proving that a subjective evaluation by an expert examiner is arbitrary. Harac v. Department of Professional Regulation, 484, So.2d 1333, 1338 (Fla. 3d DCA 1986). Here, the Respondent demonstrated that it conducts its examinations fairly and uniformally in accordance with its rules and regulations. As such, Respondent's judgments as to the proper grading of Petitioner's examination should not be disturbed unless clearly shown to be devoid of logic and reason. See State, ex rel. Topp v. Board of Electrical Examiners for Jacksonville Beach, 101 So.2d 583 (Fla 1st DCA 1958). Petitioner, only expressed his feeling that he should be given an additional point for each of his assigned score on questions 8, 9 and 10 where he maintained that his answers were technically correct. A review of all of the evidence presented herein, demonstrates that Petitioner failed to substantiate any basis to award him a passing score on his chiropractic examination. This is so because he failed to present competent and substantial evidence to demonstrate that he displayed minimal competency to the challenged questions wherein he was assigned a failing score. Petitioner therefore did not meet his burden of proof as a matter of law. Finally, Petitioner failed to demonstrate that the actual scores assigned him by the graders were either arbitrary or capricious and although Dr. Woodruff observed that she might have assigned him a total of 2 additional points for questions and 10, that would be contrary to the other two admitted expert graders who observed him.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that:

Respondent enter a Final Order finding that Petitioner failed to demonstrate that he met the minimal criteria for passage of the challenged chiropractic examination and deny his request for licensure.

DONE and ORDERED this 14th day of November, 1988, in Tallahassee, Florida.

JAMES E. BRADWELL

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 14th day of November, 1988.

COPIES FURNISHED:

H. Reynolds Sampson, Esquire Assistant General Counsel Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Dr. Clifford Shooker

2681 East Oakland Park Boulevard Fort Lauderdale, Florida 33306

Bruce D. Lamb, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Pat Guilford, Executive Director Department of Professional Regulation, Board of Chiropractic Examiners

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 87-002912

Orders for Case No: 87-002912