STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT J. DECUBELLIS, )

)

Petitioner, )

)

vs. ) CASE NO. 88-1230

) 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, K. N. Ayers, held public hearing in the above styled case on February 14, 1989, at Sarasota, Florida.

APPEARANCES

For Petitioner: Robert J. Decubellis, pro se

2539 West Burr Oak Court Sarasota, Florida 34232

For Respondent: Not present.

Prior to the commencement of the hearing but subsequent to the time scheduled for the commencement of this hearing the Hearing Officer telephoned Respondent to inquire why no representative of Respondent was present. After three telephone calls it was reported that the attorney representing Respondent did not receive a copy of the notice scheduling this case for hearing on February 14, 1989.

A review of the file revealed that this case was originally scheduled to be heard May 17, 1988 and was continued until August 15, 1988 at the request of Petitioner. By Motion to Continue received August 5, 1988, Respondent requested the August 15, 1988 hearing be continued, this was granted, and the hearing was rescheduled for September 29, 1988. On September 14, 1988, the date of hearing was changed to November 9, 1988. On November 1, Respondent again requested the hearing be continued due to a scheduling conflict with its expert witnesses.

This was granted by an order entered November 8, 1988 and, in that order, the case was rescheduled to be heard on February 14, 1989. That order reflects that a copy was sent to William A. Leffler, Esquire, Department of Professional Regulation, 136 North Monroe Street, Tallahassee, Florida and to the Petitioner. Neither copy was returned undelivered. Further, had Respondent not received an order continuing the hearing scheduled for November 9, it would have been appropriate to inquire of the Hearing Officer if formal action had been taken on the Motion for Continuance. No such inquiry was made.

Petitioner obviously received the notice of hearing as he appeared at the designated time and place and was anxious to have "his day in court" after the numerous delays as above noted.

Since no court reporter had been ordered by Respondent, inquiries were made by the Hearing Officer to ascertain the availability of a court reporter on short notice. Those efforts were unsuccessful but a tape recorder was obtained on which these proceedings were recorded.

At the hearing Petitioner testified on his own behalf and submitted into evidence 11 exhibits. He also claimed to have a tape of his responses to the questions asked him in the Practical Examination portion of the examination and of the answers given by him. The exhibits submitted by Petitioner generally consist of excerpts from texts by experts in the field of chiropractic which are intended to support the correctness of the answer given by Petitioner on the examination.

FINDINGS OF FACT

1. Petitioner was a candidate for licensure and took the Chiropractic Examination in May 1987. His final average grade on the practical portion of the exam, after a review process, was 74.5.

   
   

2. Petitioner's score sheet states that a score of 75 percent as a general average is required to pass the Practical Examination. Petitioner received the following grades:

   
   

   PRACTICAL EXAMINATION

   Section Score Achieved X-ray Interpretation 71.4

   Technique 75.0

   Physical Diagnosis 77.0

   Practical Average 74.5 FAIL Practical Examination Status FAIL

3. Petitioner's testimony that many of the answers given by him, for which he did not receive an appropriate score, were correct was unrebutted. The exhibits submitted support this conclusion.

   
   

4. Petitioner's testimony that the procedures he contends are correct at the hearing were the same procedures he used and cited during his examination was also unrebutted.

   
   

5. Petitioner's combined score on subject areas Technique and Physical Diagnosis on the Practical Examination should be raised at least by two points to result in him receiving an average of 75 percent on the practical portions of the examination if the Practical Examination is divided into three subject areas.

   
   

6. Under the rules extant at the time Petitioner took the examination the diagnosis subject area comprised three of the five subject areas on the Practical Examination. Accordingly, the score Petitioner received on physical diagnosis should comprise three-fifths of the general average.

   CONCLUSIONS OF LAW

   
   

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

   
   

8. Chiropractic examinations are conducted pursuant to Rule 21D-11.003

1. The portion of the examination here challenged by Petitioner is addressed in subparagraph (4) which currently provides:

   
   

   1. Also, in addition to the above, the Board requires a practical examination developed by the Department of Professional Regulation, which measures competency in the following subject areas:

      
      

      1. X-ray interpretation of chiropractic and pathology films.

      2. Technique with special emphasis as

         taught by the candidate's particular college. Notwithstanding the special emphasis taught at the candidate's particular college, technique will encompass the whole body.

      3. Physical diagnosis, which may

include any of the following: case history, chiropractic examination, general physical examination, x-ray technique, x-ray diagnosis, nutrition, differential diagnosis, clinical judgment.

9. Rule 21D-11.003(5), F.A.C. provides:

A score of 75 percent on each subject area in Subsection (4) shall be necessary to achieve a passing score on the practical portion of the examination outlined in Subsection (4).

The taking of the subject areas of the practical examination may not be fragmented as all of the subject areas of the practical examination must be taken and passed at the same examination.

1. While Petitioner presented a great quantity of evidence respecting subject areas (b) and (c) of subsection (4) above quoted, no evidence was presented regarding Petitioner's x-ray interpretation of chiropractic and pathology films as covered in subject area (a). The only subject area in which Petitioner received a failing grade is in subject area (a).

   
   

2. It was noted that several amendments to Rule 21D-11.00, F.A.C. have been made since the May, 1987 Chiropractic Examination and Respondent was requested to provide the Hearing Officer with a copy of the rule as it existed in May, 1987. This was done.

12. In May, 1987 Rule 21D-11.003(4)(5), F.A.C. provided:

1. The Practical Examination measures competency in the following subject areas:

   
   

   1. X-ray interpretation of chiropractic and pathology films;

   2. Technique with special emphasis as taught at the candidate's particular college;

   3. Physical diagnosis;

   4. orthopedic diagnosis; and

   5. Neurological diagnosis.

2. All subject areas are to be weighted equally in grading the examination. A raw score of 75 percent in each of the subject areas specified in Subsections (2) and (3) shall be necessary to achieve a passing grade on the written portion of the examination. A raw score of 75 percent as a general average shall be necessary to achieve a passing score on the practical portion of the examination outlined in Subsection (4). The taking of the subject areas of the practical examina- tion may not be fragmented as all of the subject areas of the practical examination must be taken and passed at the same examina- tion.

1. From the manner in which the grades were recorded for Petitioner and the recent changes in Rule 21D-11.003 it appears that Petitioner's grades were grouped in the three subject areas as listed in the current rule on the practical portion of the examination and then averaged to result in a failing grade. However, at the time Petitioner sat for this examination the practical examination was divided into five subject areas and Subsection (5) provided all subject areas are to be weighted equally in grading the examination.

   
   

2. Thus Subsections (4)(c), (d), and (e) of the Rule in 1987 were incorporated in Subsection (4)(c) of the current rule and these three Subsections were not weighted equally with the other two Subsections extant in 1987.

   
   

3. Petitioner received a grade of 77 percent on subject area (c) of the current rule and in arriving at his average grade Respondent added the grades Petitioner received in subject areas (a), (b) and (c) and divided by three to arrive at an average of 74.5 percent.

   
   

4. At the time Petitioner took this examination the rule required that he be graded on five subject areas and to receive a passing grade on the practical portion of the examination he must receive a raw score of 75 percent as a general average of those subject areas. Since Petitioner received a score of 77 on physical diagnosis, (Subsection (c)) this grade can be multiplied by three and added to the grades he received for x-ray interpretation and technique and then divided by five to determine his general average on the practical portion of the examination. This will result in an average grade of 75.5 percent. [(3 x 77) + 74.5 + 75 divided by 5 = 377.4 over 5 = 75.5].

5. Here the burden is on the Petitioner to prove by a preponderance of the evidence that the actions of Respondent in awarding a Petitioner an average failing grade is arbitrary or capricious. I. H. Topp v. Board of Electrical Examiners for Jacksonville Beach, 101 So.2d 583 (Fla. 1st DCA 1958); Cf. State ex re Glaser v. State Department of Environmental Regulation, 155 So.2d 383 (Fla. 1st DCA 1983). By failing to divide the physical diagnosis grade into the three subject areas required by Rule 21D-11.003(4), F.A.C. (1987) Respondent failed to follow its own rules. This constitutes arbitrary action. See, Gadsden State Bank v. Lewis, 348 So.2d 343 (Fla. 1st DCA 1977).

   
   

6. Furthermore, Petitioner presented unrebutted evidence that he should have received at least two points higher on his grades in subject areas (b) and

   (c) which when averaged with is grade in subject area (a) would result in an average grade of 75 percent.

   
   

7. From the foregoing it is concluded that Petitioner's scores on the practical portion of the examination were not averaged in accordance with the rule extant at the time the examination was taken and when properly averaged results in a passing grade. It is further concluded that Petitioner presented competent and substantial evidence that the grades he received on subject areas

(b) and (c) should be increased at least two points so as to result in a general average of more than 75 percent. It is

RECOMMENDED that a Final Order be entered awarding Robert J. DeCubellis a general average grade on the practical portion of the May, 1987 Chiropractic Examination of at least 75 percent and an overall passing grade on the examination.

ENTERED this 24th day of February, 1989 in Tallahassee, Leon County Florida.

K.N. AYERS Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1989.

COPIES FURNISHED:

Mr. Robert J. DeCubellis 2539 West Burr Oak Court Sarasota, Florida 34232

William A. Leffler, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Mr. Fred Varn Executive Director Chiropractic Board

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

H. Reynolds Sampson Deputy General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 88-001230

Orders for Case No: 88-001230