STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT ROSENBERG, )

)

Petitioner, )

)

vs. ) CASE NO. 90-2798

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF PODIATRY, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in this case was held on March 7, 1991, in Miami, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Melvyn G. Greenspahn, Esquire

3550 Biscayne Boulevard

Suite 404

Miami, Florida 33137

For Respondent: Vytas J. Urba, Esquire

Northwood Centre, Suite 60 1940 North Monroe Street

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUE

The issue in this case is whether Robert Rosenberg (Petitioner) should be granted additional credit on the July, 1989, podiatry licensure examination administered by the Department of Professional Regulation (Respondent), or whether the examination, its administration and ultimate grading were valid and reflective of his status as an unsuccessful candidate.

PRELIMINARY STATEMENT

This case is one of four related examination challenges involving the July, 1989, podiatry examination. These cases were not consolidated, but were heard at the same time and place. There is one transcript of the proceeding which encompasses all four cases. Additionally, the exhibits introduced at hearing pertain to all four cases, unless they are clearly relevant to only one of these exam challenges, in which case such exhibit has only been considered in the resolution of the case to which it pertains.

At the hearing, the Petitioner testified on his own behalf, and also called Ella D. Hall. The Respondent called Melvin Fried, Ph.D., an expert in biochemistry, Dr. Steven M. Spinner, an expert in podiatric medicine, and Ella

1. Hall, who was accepted as an expert in psychometrics. The Petitioner introduced eight exhibits, and the Respondent introduced eleven exhibits.

   
   

   The transcript of the final hearing was filed on April 8, 1991, and thereafter, the Petitioner requested an extension of time until April 25, 1991, to file a proposed recommended order. A ruling on each proposed finding of fact included in the parties' timely filed proposed recommended orders is included in the Appendix to this Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   1. Petitioner took the podiatry licensure examination administered by the Respondent in July, 1989, receiving a grade of 63.8%, with 230 correct answers. A score of 75%, with 270 correct answers, is required to pass the examination for licensure.

      
      

   2. This podiatry examination was developed by the Bureau of Examination Services in conjunction with consultants who served as "item writers", and Florida licensed podiatrists. Five Florida licensed podiatrists selected items written by the various consultants from a bank of questions available for the 1989 examination. Competent substantial evidence was not introduced on behalf of the Petitioner to establish that the examination was in any way flawed in its preparation or method of selecting the actual questions used on this exam.

      
      

   3. The Petitioner testified that several questions were misspelled in the examination booklet which he received at the exam site. The actual question booklets used for the July, 1989, exam were introduced in evidence, but the Petitioner failed to establish, by competent substantial evidence, that there were any significant misspellings in these booklets which would in any way impair the fairness or validity of the examination results.

      
      

   4. The Petitioner also urges that the administration of the exam was unfair and that he had insufficient time to take the morning session of the exam. He suffers from low blood sugar, and during the morning exam session he felt faint. The exam proctor had prohibited all candidates from bringing candy or Cokes into the examination room, and therefore, he had to leave the exam while it was in progress to get a Coca-Cola in order to elevate his blood sugar. He claims he had to walk a very long way to find a Coke machine, and that as a result, he lost significant time from the morning session of the exam. However, unrebutted exam records show that only one candidate was still in the examination room during the last 50 minutes of the morning session, and that candidate was not the Petitioner. Therefore, the Petitioner has not established that he lacked sufficient time to complete the morning session of the exam due to his low blood sugar problems.

      
      

   5. It is also asserted by the Petitioner that he was given insufficient time to review his examination and to identify problems in the grading of his examination. The review session was conducted on October 24, 1989, and the Petitioner attended. The review session concluded at 1:00 p.m. on that date, but unrebutted records of this review establish that the Petitioner completed his review and left the review room at 12:28 p.m. Thus, the Petitioner has failed to establish, by competent substantial evidence, that he lacked sufficient time to complete his review.

   6. There is a lack of competent substantial evidence in the record to establish that the grades which the Petitioner received on the July, 1989, podiatry licensure examination were incorrect, unfair, or invalid, or that the examination, and subsequent review session, were administered in an arbitrary or capricious manner.

      
      

      CONCLUSIONS OF LAW

      
      

   7. The Division of Administrative Hearings has jurisdiction over the parties, and the subject matter in this cause. Section 120.57(1), Florida Statutes.

      
      

   8. Section 461.006, Florida Statutes, authorizes the Respondent to administer examinations to applicants for licensure in podiatric medicine, and requires successful completion of said examination prior to licensure in the State of Florida. Since this is a case in which Petitioner is seeking to obtain licensure in podiatry, the Petitioner has the burden of establishing his entitlement to that licensure by a preponderance of the evidence. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). Specifically, an examinee who seeks to establish that his grade on a subjective examination was incorrect, must show that the agency's initial grading of his exam was arbitrary or capricious. Harac v. Department of Professional Regulation, 484 So.2d 1333, 1338 (Fla. 3rd DCA 1986); State ex rel. Glaser v. J.M. Pepper, 155 So.2d 383 (Fla. 1st DCA 1963). In Agrico Chemical Company v. Department of Environmental Regulation, 365 So.2d 759, 763 (Fla. 1st DCA 1978), relevant terms were defined as follows:

      
      

      A capricious action is one which is taken without thought or reason or irrationally.

      An arbitrary decision is one not supported

      by facts or logic, or despotic. Administrative discretion must be reasoned and based on competent substantial evidence. Competent substantial evidence has been described as

      such evidence as a reasonable person would accept as adequate to support a conclusion.

      
      

   9. Petitioner challenges his grades on the podiatry licensure examination given in July, 1989. As found above, based on the evidence presented, the grades which the Petitioner received, as well as the administration of the exam, were not shown to be either arbitrary or capricious. To the contrary, competent substantial evidence in the record supports the grades which the Petitioner received, and establishes that the challenges to certain procedural aspects of the July, 1989 examination and review session are without merit.

RECOMMENDATION

Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing the Petitioner's challenge to the grades he received on the July, 1989, podiatry licensure examination.

RECOMMENDED this 7th day of May, 1991 in Tallahassee, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1991.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-2798

Despite waiting an additional seven days until April 25, 1991, as requested by counsel for the Petitioner in his letter filed on April 19, 1991, no proposed recommended order was filed on behalf of the Petitioner.

Rulings on the Respondent's Proposed Findings of Fact:

1. Adopted in Finding 1.

2. Adopted in Findings 2 and 3.

3. Adopted in Finding 4.

4. Adopted in Finding 5.

COPIES FURNISHED:

Melvyn G. Greenspahn, Esquire 3550 Biscayne Boulevard

Suite 404

Miami, FL 33137

Vytas J. Urba, Esquire Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792

Jack McRay, Esquire Northwood Centre

1940 North Monroe Street Tallahassee, FL 32399-0792

Patricia Guilford Executive Director Board of Podiatry

1940 North Monroe Street Tallahassee, FL 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the Final Order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 90-002798

Orders for Case No: 90-002798