STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GEORGE MARTUCCIO, )

)

Petitioner, )

)

vs. ) CASE NO. 91-2354

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF OPTOMETRY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on September 19, 1991, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Kenneth G. Oertel, Esquire

Oertel, Hoffman, Fernandez & Cole, P.A. 2700 Blair Stone Road, Suite C Tallahassee, Florida 32301

For Respondent: Vytas J. Urba, Esquire

Assistant General Counsel

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUE

The issue presented is whether Petitioner achieved a passing grade on the clinical portion of the September, 1990, optometry examination.

PRELIMINARY STATEMENT

Respondent notified Petitioner that he had failed to achieve a passing grade on the clinical portion of the September, 1990, optometry examination, and Petitioner timely requested a formal hearing to challenge the points awarded to him for four procedures he performed as part of Section 2 of the clinical portion of that examination. This matter was thereafter transferred to the Division of Administrative Hearings for the conduct of that formal proceeding.

Petitioner testified on his own behalf and presented the testimony of Eunice Loewe. Respondent presented the testimony of Eunice Loewe and Garry T. Chrycy. Additionally, Petitioner's Exhibits numbered 1 and 2 and Respondent's Exhibits numbered 1, 2, and 5 were admitted in evidence.

Only Respondent submitted post hearing proposed findings of fact in the form of a proposed recommended order. A specific ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner is an applicant for licensure as an optometrist in the State of Florida. He received a Bachelor's Degree in Biology from Youngstown State University in 1985. In 1989, Dr. Martuccio graduated from the Ohio State University College of Optometry where he had followed a four-year course of study prior to receiving his optometry degree. Dr. Martuccio has been practicing optometry in Ohio since 1989.

   
   

2. When Dr. Martuccio took the 1989 optometry examination for licensure in Florida, he received a passing grade on the written portion of the examination but not on the clinical portion. That passing grade on the written examination remained valid when he took the 1990 optometry exam. Therefore, in 1990 Dr. Martuccio only had to repeat the clinical part of the examination. Dr. Martuccio received lower than a passing grade on that clinical examination.

   
   

3. For the clinical examination, an applicant is required to bring his or her own "patient." The clinical examination is conducted by having a candidate perform procedures requested by the examiners on the "patient."

   
   

4. The clinical portion of the optometry examination is divided into two sections. On Section 1 an applicant can receive a possible score of 48 points. Dr. Martuccio received a perfect score of 48 points on that Section. The total passing grade for Section 1 and Section 2 is 80 points. Therefore, Dr. Martuccio needed to receive a total of 32 points out of a possible 52 points on Section 2. However, the grades given to Dr. Martuccio on Section 2 totaled only

   27.5. His total score for the clinical portion of the 1990 optometry exam was, therefore, 75.5.

   
   

5. Section 2 of the clinical examination is divided into 16 different procedures. Each of the 16 procedures has a maximum score that varies depending on the weight given to the procedure. The grading is done by two examiners who are practicing optometrists. If both examiners agree, the candidate either receives no credit or full credit depending on whether they considered him to have properly performed the procedure requested. If they disagree, the candidate is given one-half of the possible points on that procedure.

   
   

6. Dr. Martuccio has challenged the scores he received on four of the procedures in Section 2 of the September, 1990, clinical exam. Those four procedures, in the order in which they were performed, are: BIO 2 (Binocular Indirect Opthalmoscope), Anterior Biomicro 4 (Anterior Biomicroscopy), Anterior Biomicro 9 (Anterior Biomicroscopy), and Gonio 15 (Gonioscopy).

   
   

7. In Binocular Indirect Opthalmoscope 2 Dr. Martuccio was required to show a clear view of the fundus (back of the eye). The back of the eye is visible through the dilated eye by means of a binocular headpiece worn by the candidate and a hand-held lens, which are focused together. This procedure is very simple to perform. It is a procedure which he has been doing since "day one in optometry school," and which Petitioner performs daily in his private practice. One of the graders who evaluated Dr. Martuccio's performance on BIO 2 indicated that he performed the procedure properly, but the other grader indicated that his demonstration was "out of focus".

8. Dr. Martuccio's sight is perfect in both eyes, and he is capable of detecting whether an image is out of focus. Since the "patient" did not move during the examination process, then one of the graders made a mistake in his evaluation. Dr. Martuccio correctly performed BIO 2, and he should receive 2.5 additional points for that procedure.

   
   

9. The next procedure in dispute is Anterior Biomicroscopy 4, which was worth a total of four points. The two graders disagreed as to whether Dr. Martuccio properly performed the procedure, and he, therefore, received only two points. This procedure required him to display the corneal endothelium. To do that, Dr. Martuccio used a slit lamp which is an instrument that projects a beam of light into the patient's eye. One grader gave Dr. Martuccio full credit for this procedure. The other gave no credit, commenting that Dr. Martuccio used an optic section rather than a parallelpiped. There is an elementary and fundamental difference between a parallelpiped and an optic section of light projected from a slit lamp. The slit lamp has a separate adjustment that determines the width of this beam of light. Since Dr. Martuccio did not change the width of the beam of light after he began the procedure, that width did not change between the time the first examiner and the second examiner evaluated his work. One of the examiners was mistaken in grading Dr. Martuccio's performance, and Dr. Martuccio was scored incorrectly on this procedure.

   
   

10. For Anterior Biomicroscopy 9, Dr. Martuccio was instructed to focus on the anterior vitreous, part of the gel-like substance in the middle of the eye. In some patients vitreous strands are present and may be visible during the examination. However, in healthy patients vitreous strands are not present and the anterior vitreous is extremely clear. In those situations, the beam of light from the slit lamp will have nothing from which to reflect.

    
    

11. Dr. Martuccio utilized the standard method of examining the anterior vitreous by focusing the instrument on the back of the lens, which is immediately adjacent to the beginning of the anterior vitreous. The focus is then projected inward, into the eye, which will automatically set the focus within the anterior vitreous. Dr. Martuccio's patient had no vitreous strands, protein particles, or other objects in his anterior vitreous. Thus, there was an absence of particles which would reflect light back to the observer from the subject.

    
    

12. The examiner who gave Dr. Martuccio no points for this procedure noted, as his explanation, that vitreous strands were not visible. However, as explained by Dr. Martuccio and corroborated by the Department's expert witness, that was an inappropriate comment if the patient had no vitreous strands. Since the examiner's comments were inappropriate, indicating he used an erroneous criterion, Dr. Martuccio was given an incorrect score on this procedure.

    Instead of two points, he should have received the full four points.

    
    

13. The last procedure in issue is Gonio 15. This was worth a total of four points for which Dr. Martuccio received only two. This process requires a gonioscope to be placed on the patient's eye, in much the same fashion as a contact lens is placed on the eye. Once the gonioscope is placed, a mirror inside this instrument allows the optometrist to examine structures of the eye at a sideways angle and see portions of the eye which are not visible by looking straight into the eye.

    
    

14. Dr. Martuccio installed the gonioscope properly and adjusted it so that the structures in question were clearly visible. He received full credit from one of the examiners but no credit from the other examiner whose comment

    was that the structures were "out of focus". It is unreasonable to believe that Dr. Martuccio did not keep the structures of the eye in question in focus during this examination. He was able to perform all of the procedures easily, without any delays, and had no problem doing all the procedures in the allotted time, which was relatively brief.

    
    

15. Dr. Martuccio's "patient" was an ideal subject who did not move in any fashion so as to cause the focus to change for any of these procedures. Further, Dr. Martuccio is knowledgeable about structures of the eye and the use of all of the instruments involved in this case. He has had extensive training and experience in these areas not only through his formal education in optometry, but also due to the fact that Dr. Martuccio has been in private practice for over two years, using these instruments on a daily basis. Considering that Dr. Martuccio has perfect vision in both eyes, it is difficult to conceive that he could not keep his instruments in focus for the few seconds it took for both examiners to review his work.

    
    

16. The Department's expert witness, Dr. Chrycy, characterized the procedures that are called for in Section 2 of the clinical examination as being fundamental and relatively simple. Candidates who cannot perform these functions are clearly unqualified to be an optometrist. Dr. Chrycy expects all graduates of optometric school to be able to keep images in focus.

    
    

17. Dr. Martuccio has been licensed in the State of Ohio for over two years and has recently been licensed in the state of Pennsylvania. He passed the National Board examination which is recognized in at least 10 states for licensure. Both the National Board and the Ohio licensure examinations have clinical components similar to Florida's. Dr. Martuccio passed both of those clinical examinations on his first attempt. When considered in light of Dr. Chrycy's characterization that the examination tests fundamental, basic ability and is not difficult, one cannot accept the proposition that Dr. Martuccio was fairly graded in this examination process.

    
    

18. The general passing rates that candidates taking the Florida optometry exam have experienced since 1986 are quite low. In 1987, only 51% of those taking the clinical portion of the examination passed; in 1988, 59%; in 1989, 57%, and in 1990, 53%. The overall pass rate for the entire exam is even lower: in 1987, only 30%; in 1988, only 42%; in 1989, only 45%, and in 1990, only 34%. If taken literally, these scores mean that the typical applicant for licensure as an optometrist in Florida is incompetent at using the basic, everyday instruments employed by optometrists and by optometric technicians and is incapable of identifying the different parts of the eye. Such a conclusion is without credibility.

    
    

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.

    
    

20. Although Petitioner presented some evidence which indicated that either the Florida optometry examination administered in September, 1990, failed to test minimum competency or that the standardization process is inadequate to ensure that candidates are fairly graded, Petitioner stated on the record during the final hearing that he is not challenging the format or content of the clinical examination; rather, he is only challenging the four procedures on which the examiners disagreed. Petitioner, as a licensed optometrist in both

    the states of Ohio and Pennsylvania, was accepted as an expert witness in this proceeding. Petitioner explained how the instruments involved in the four procedures are utilized, how those four procedures are properly performed, and how he performed them during the clinical examination. He testified that he performed them perfectly, that his "patient" was an ideal subject, and that his patient never moved but rather sat perfectly still during the procedures.

    Petitioner has perfect vision without correction. Before he was graded on each procedure, he made sure that the instruments were in perfect focus, he verified the focus by closing each eye alternatively, and he maintained perfect focus while he was graded by each of the two graders. Petitioner's testimony that he properly performed the four procedures is uncontroverted.

    
    

21. Respondent did not present the testimony of either of the practicing optometrists who graded Petitioner. Respondent presented the testimony of its psychometrician and one of the authors of the examination. Although they testified regarding the statistical analysis of the examination, the four procedures involved in this proceeding, and the pre-examination standardization process which the graders are required to attend, neither of them graded Petitioner on the procedures in question and neither of them could, therefore, offer any evidence as to whether Petitioner properly performed the four procedures. One of those witnesses, the practicing optometrist, admitted that the four procedures in question are elementary, involve the use of basic instruments, and are procedures that he used to teach in courses to become optometric technicians at a junior college. He would expect all graduates of schools of optometry to be able to perform those simple procedures correctly. He admitted that the comment of the grader who determined that Petitioner did not properly perform the Anterior Biomicroscopy 9 procedure that no vitreous strands were visible was an inappropriate comment since vitreous strands would not be visible in healthy eyes. The presence of vitreous strands is not a criteria for that particular procedure, and it is clear that that grader incorrectly graded Petitioner's performance. Similarly, the Department's optometrist admitted that if the "patient" did not move and Petitioner did not adjust his instruments during the few seconds between each grader reviewing

    Petitioner's work, then the examiner commenting that Petitioner's instrument was "out of focus" would be wrong.

    
    

22. Although Petitioner did not attend the pre-examination standardization process for graders, such lack of attendance is irrelevant regarding the four procedures in question in this proceeding. Essentially, the four procedures simply ask Petitioner to identify four parts of the eye. It is inconceivable that it would be necessary to attend a pre-examination standardization process to know whether a candidate has correctly pointed to the right part of the body.

    
    

23. Respondent argues that the relief available to Petitioner in this proceeding is limited to re-taking the clinical examination. Respondent relies on Rule 21-11.013(1), Florida Administrative Code. That Rule provides as follows:

    
    

    In a practical examination, if it is deter- mined that a candidate was graded improperly in a portion of the examination through no fault of his/her own, he/she shall be permit- ted to retake at the next regularly scheduled examination that portion of the examination at no charge.

    That Rule does not provide that it is the exclusive remedy for candidates challenging an examination. The Legislature has provided that candidates in the State of Florida may challenge the examination administered to them and the manner in which it is graded. That statutory scheme contemplates relief being given to a candidate who is successful in such a challenge. While the Department could have allowed Dr. Martuccio to retake the clinical examination without charge, it has not done so. There is no suggestion by either party that allowing Petitioner to retake the clinical examination would afford him any relief. It is likely that Petitioner would be subjected to the same disagreement between graders with no determination made as to whether he correctly performed the procedure. Further, Petitioner achieved a perfect score on Section 1 of the clinical portion of the examination and yet failed the clinical portion of the examination because the scores in Section 1 and Section

    2 must be added together. Respondent has not suggested that any provision exists for someone to retake only a portion of a portion of the examination or that Dr. Martuccio's perfect score on Section 1 of the clinical portion of the examination would retain its validity and effectiveness so that he would not have to retake parts of the examination in which he had already achieved a perfect score.

    
    

24. The unrebutted evidence is that Petitioner perfectly performed the four procedures in question, that he is capable of using those instruments which he utilizes daily in his practice, that he can identify the parts of the eye, and there is no rational basis for giving Petitioner only partial credit for his performance of the four procedures in question. Petitioner is entitled to full credit on each of the four procedures performed. He should receive five points for BIO 2, four points for Anterior Biomicroscopy 4, four points for Anterior Biomicroscopy 9, and four points for Gonioscopy 15. Since Petitioner was given

1. points on Section 2, since he needed 32 points on that Section to achieve a passing grade for the clinical portion of the examination, and since the uncontroverted evidence is that Petitioner is entitled to receive full credit on the four procedures challenged herein for a total of 8.5 additional points, then the evidence is uncontroverted that Petitioner earned sufficient points and that he successfully passed the clinical portion of the September, 1990, optometry examination.

   
   

   RECOMMENDATION

   
   

   Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered awarding to Petitioner 8.5 additional points on the clinical portion and finding that Petitioner achieved a passing score on the September, 1990, optometry examination.

   
   

   RECOMMENDED this 13th day of November, 1991, at Tallahassee, Florida.

   
   

   
   

   LINDA M. RIGOT

   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 13th day of November, 1991.

   
   

   APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-2354

   
   

   1. Respondent's proposed findings of fact numbered 1-3 have been adopted in substance in this Recommended Order.

   2. Respondent's proposed findings of fact numbered 4 and 6 have been rejected as being subordinate to the issues under consideration in this cause.

   3. Respondent's proposed findings of fact numbered 5 and 7 have been rejected as being irrelevant to the issues under determination herein.

   4. Respondent's proposed finding of fact numbered 8 has been rejected as not constituting a finding of fact but rather as constituting argument of counsel.

COPIES FURNISHED:

Diane Orcutt, Executive Director Department of Professional

Regulation/Board of Optometry 1940 North Monroe Street Tallahassee, Florida 32399-0792

Jack McRay, General Counsel Department of Professional

Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Kenneth G. Oertel, Esquire

Oertel, Hoffman, Fernandez & Cole, P.A. 2700 Blair Stone Road, Suite C Tallahassee, Florida 32301

Vytas J. Urba, Esquire Assistant General Counsel Department of Professional

Regulation

1940 North Monroe Street Tallahassee, Florida 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.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF OPTOMETRY

GEORGE MARTUCCIO, O.D.

Petitioner, DOAH CASE NO.: 91-2354

vs.

DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF OPTOMETRY,

Respondent.

/

FINAL ORDER

THIS MATTER came before the Board of Optometry on January 30, 1992 in Orlando, Florida for consideration and action on a Recommended Order rendered by a Hearing Officer of the Division of Administrative Hearings pursuant to Section 120.57(1), Florida Statutes. Said Recommended Order is attached hereto and incorporated herein by reference.

The Petitioner was present and represented by Ken Oertel, Attorney At Law.

The Respondent was represented by Vytas Urba, Attorney At Law.

The Board reviewed the entire record of the case submitted in accordance with Section 120.57(1) F.S.

EXCEPTIONS TO THE RECOMMENDED ORDER

The Board ruled as follows on Exceptions filed by the Respondent:

Paragraph number eight (8) of the Findings of Fact of the Recommended Order was rejected for the reasons stated in paragraphs two (2) and three (3) of Respondent's Exceptions to the Recommended Order which in summary are that said findings are not supported by competent substantial evidence.

Paragraph number nine (9) of the Findings of Fact of the Recommended Order was rejected for the reasons stated in paragraph four (4) of Respondent's Exceptions to the Recommended Order which in summary are that said findings are not supported by competent substantial evidence.

Paragraph number twelve (12) of the Findings of Fact of the Recommended Order was rejected for the reasons stated in paragraph five (5) of Respondent's Exceptions to the Recommended Order which in summary are that said findings are not supported by competent substantial evidence.

Paragraph number fourteen (14) and fifteen (15) of the Findings of Fact of the Recommended Order were rejected for the reasons set forth in paragraph number six (6) of Respondent's Except ions to the Recommended Order which in summary are that these findings are not supported by competent substantial evidence. The Board on its own motion also specifically rejects the findings in paragraphs fifteen (15) and seventeen (17) of the Recommended Order that the Petitioner had been in practice for over two years in that there was no competent substantial evidence in the record to support such findings.

Paragraphs seventeen (17) and (18) of the Findings of Fact of the Recommended Order were rejected for the reasons set forth in paragraphs seven

(7) and eight (8) of the Respondent's Exceptions to the Recommended Order which in summary are that these Findings of Fact are not based on competent substantial evidence.

The Board concurred with Paragraph nine (9) of Respondent's Exceptions to the Recommended Order for the reason that there is no competent substantial evidence in the record on which to base the Hearing Officer's conclusion of law that the Petitioner's performance was error free in the practical examination.

The Board concurred with Paragraph ten (10) of Respondent's Exceptions to the Recommended Order for the reason that the Recommended Conclusions of Law by the Hearing Officer that the opportunity to retake the examination would not afford adequate relief was a conclusion which was not based on competent substantial evidence.

The Board concurred with Paragraph eleven (11) of Respondent's Exceptions to the Recommended Order in that the Hearing Officer's Recommended conclusion that the Petitioner is entitled to receive full credit for the four challenged procedures is not supported by competent substantial evidence and therefore the petitioner has not met his burden of proof.

FINDINGS OF FACT

The Board adopts as Findings of Fact in this Final Order, paragraphs one

(1) through seven (7) percent, ten (10), eleven (11) thirteen (13), and sixteen

(16) of the Recommended Order.

CONCLUSIONS OF LAW

The division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.

The only evidence that should have been considered relevant in this case was whether the Rule 21-11.009(2) Florida Administrative Code was applied as required by the rule. In that such rule sets a procedure for resolving differences in examiner grading which was followed in this case and since the validity of the rule itself has not been challenged, evidence as to other possible ways to resolving grading disputes (eg. considering the examinee's opinion of how he did on the examination) should not be considered. Therefore, on this basis alone the Petitioner has not met his burden to show that the Rule was not applied appropriately or that he was not graded correctly. Therefore, Petitioner's claim for additional credit on the 1990 optometry exam should be denied.

Furthermore, although Petitioner presented some evidence which indicated that either the Florida optometry examination administered in September, 1990,

failed to test minimum competency or that the standardization process is inadequate to ensure that candidates are fairly graded, Petitioner stated on the record during the final hearing that he is not challenging the format or content of the clinical examination; rather, he is only challenging the four procedures on which the examiners disagreed. Therefore, no conclusion is based on such evidence.

However, Petitioner, as a licensed optometrist in both the states of Ohio and Pennsylvania, was accepted as an expert witness in this proceeding.

Petitioner explained how the instruments involved in the four procedures are utilized, how he performed them during the clinical examination. He testified that He performed them perfectly, that his "patient" was an ideal subject, and that his patient never moved but rather sat perfectly still during the procedures. Petitioner has perfect vision without correction. Before he was graded on each procedure, he made sure that the instruments were in perfect focus, he verified the focus by closing each eye alternatively, and he maintained perfect focus while he was graded by each of the two graders.

Petitioner's testimony as to the above issues and that he properly performed the four procedures in question was only supported by Petitioner's self serving testimony and was controverted by evidence that one examiner graded the Respondent as not completing these procedures correctly. Respondent's evidence alone was not competent substantial evidence.

Although they testified regarding the statistical analysis of the examination, the four procedures involved in this proceeding, and the pre- examination standardization process which the graders are required to attend, neither of them graded Petitioner on the procedures in question and neither of Respondent's witnesses could, therefore, offer any evidence as to whether petitioner properly performed the four procedures. However, documentary evidence was offered and admitted as to the Petitioner's results on the questioned procedures. One of those witnesses, the practicing optometrist, admitted that the four procedures in question are elementary, involve the use of basic instruments, and are procedures that he used to teach in courses to become optometric technicians at a junior college. He would expect all graduates of schools of optometry to be able to perform those simple procedures correctly.

He admitted that the comment of the grader who determined that Petitioner did not properly perform the Anterior Biomicroscopy 9 procedure that no vitreous strands were visible was an inappropriate comment since vitreous strands would not be visible in healthy eyes. However, while the examiners comments regarding vitreous strands was deemed as inappropriate by the Respondent's expert, its inappropriateness does not negate the response recorded by one of the examiners that the procedure was not done correctly by the petitioner.

The Department's optometrist admitted that if the "patient" did not move and petitioner did not adjust his instruments during the few seconds between each grader reviewing petitioner's work, then the examiner commenting that Petitioner's instrument was "out of focus" would be wrong, but there was no competent substantial evidence that the patient did not move which could have changed the focus.

Although petitioner did not attend the pre-examination standardization process for graders, such lack of attendance is irrelevant regarding the four procedures in question in this proceeding. Essentially, the four procedures simply ask Petitioner to identify four parts of the eye. It is inconceivable that it would be necessary to attend a preexamination standardization process to know whether a candidate has correctly pointed to the right part of the body.

Respondent argues that the relief available to Petitioner in this proceeding is limited to retaking the clinical examination. Respondent relies on Rule 21-11.013(1), Florida Administrative Code. That Rule provides as follows:

In a practical examination, if it is determined that a candidate was graded improperly in a portion of the examination through no fault of his/her own, he/she shall be permitted to retake at the next regularly scheduled examination that portion of the examination at no charge.

That Rule does not provide that it is the exclusive remedy for candidates challenging an examination. The Legislature has provided that candidates in the State of Florida may challenge the examination administered to them and the manner in which it is graded. That statutory scheme contemplates relief being given to a candidate who is successful in such a challenge. While the Department could have allowed Dr. Martuccio to retake the clinical examination without charge, it has not done so as the 1990 examination was valid and fair and an examination retake was neither necessary nor requested. It is also not determined that the opportunity to retake the examination would not have provided Petitioner full relief.

It has been found that Petitioner achieved a perfect score on Section 1 of the clinical portion of the examination and yet failed the clinical portion of the examination because the scores in Section 1 and Section 2 must be added together. Respondent has not suggested that any provision exists for someone to retake only a portion of a portion of the examination or that Dr. Martuccio's perfect score on Section 1 of the clinical portion of the examination would retain its validity and effectiveness so that he would not have to retake parts of the examination in which he had already achieved a perfect score.

There is no competent substantial evidence that Petitioner properly performed the four procedures in question, or that he is capable of using those instruments which he utilizes daily in his practice. Petitioner did not meet his burden to prove he is entitled to receive full credit on the four procedures challenged herein for a total of 8.5 additional points. Since Petitioner was given 27.5 points on Section 2 and needed 32 points on that Section to achieve a passing grade for the clinical portion of the examination, it is determined that he did not successfully pass the clinical portion of the September, 1990, optometry examination. The petitioner has not shown by competent substantial evidence that an error occurred in the grading of his examination. Any error in grading, if an error occurred, has not been shown by Petitioner to be the exclusive province of the examiner in each procedure who awarded him zero points. Thus, having not met his burden of showing which examiner was wrong in assessing his performance, he has not met his burden in 7) challenging his score on the 1990 clinical optometry examination. Therefore, no additional points should be awarded to Petitioner.

ORDER

It is ORDERED that the Petitioner not be awarded additional points in the clinical portion of the September 1990 optometry examination and that therefore it is conf irmed that Petitioner did not achieve a passing score on that examination.

NOTICE OF RIGHT OF APPEAL

Pursuant to Section 120.59, Florida Statutes, the parties are hereby notified that they may appeal this Final Order by filing one copy of the Notice of Appeal with the Clerk of the Department of professional Regulation by filing the filing fee and a copy of a Notice of Appeal with the District Court of Appeal within thirty (30) days of the date when this Final Order is filed, as provided in Chapter 120, Florida Statutes, and the Florida Rules of Appellate procedure.

DONE AND ORDERED this 14th day of April, 1992.

HOWARD BRAVERMAN, O.D.

Chairman of the Board of Optometry

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was sent by

U.S. Mail to George Martuccio, O.D., c/o Ken Oertel, Esquire, 2700 Blair Stone Road, Tallahassee, Florida 32301; and to Vytas Urba, Assistant General Counsel, Department of Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399-0792 on this 16th day of April, 1992.

STEPHANIE PERIER

================================================================= DISTRICT COURT OPINION

=================================================================

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

GEORGE MARTUCCIO, O.D., NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

Appellant, DISPOSITION THEREOF IF FILED

CASE NO. 92-1535

DOAH CASE NO. 91-2354

DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF OPTOMETRY,

Appellee.

/ Opinion filed August 12, 1993.

An Appeal from an Order of the Department of Professional Regulation.

Kenneth G. Oertel of Oertel, Hoffman, Fernandez & Cole, Tallahassee, for appellant.

Kathryn L. Kazprzak, Department of Professional Regulation, Tallahassee, for appellee.

KAHN, J.

Appellant Dr. George Martuccio has bought licensure as a Florida optometrist. When he received a lower than passing grade on the clinical portion of the required licensing examination, Dr. Martuccio petitioned for a formal hearing pursuant to section 120.57, Florida Statutes. After an administrative hearing, the hearing officer assigned by the Division of Administrative Hearings recommended that the Board of Optometry (Board) issue a final order finding that Dr. Martuccio achieved a passing score on the examination. The Board, however, declined the recommendation, concluding that Dr. Martuccio did not achieve a passing score. Because the Board rejected findings of fact that were supported by competent substantial evidence, we reverse and direct that a final order be entered pursuant to the recommendation of the hearing officer.

Dr. Martuccio is a graduate of a four-year course of study at the Ohio State University College of Optometry. Prior to seeking Florida licensure he qualified to practice optometry in Ohio. When Martuccio took the 1989 optometry examination in Florida, he received a passing grade on the written portion of the examination, but not on the clinical portion. The passing grade on the written examination remained valid when he sat in 1990 to be reexamined.

Therefore the 1990 examination consisted only of the clinical portion. The

clinical portion of the examination is divided into two sections, each involving a series of procedures performed by the candidate on subjects who serve as patients.? On the first section, Dr. Martuccio received a perfect score of 48 points. On the second section, Dr. Martuccio's score totalled only 27.5 points. Since a total grade of 80 points is required for a passing score on the clinical examination, Dr. Martuccio fell 4.5 points short and accordingly received a failing grade.

Section 2 of the examination is divided into 16 different procedures. The grading is done by two examiners who are themselves practicing optometrists. If both examiners agree on a candidate's performance, the candidate either receives no credit or full credit for a particular procedure. If the examiners disagree, the candidate is given one-half of the possible points on that procedure. In the administrative proceeding Dr. Martuccio challenged the scores he received on four of the procedures in section 2 of the 1990 clinical examination. In each of these four procedures, binocular indirect opthalmoscopy, anterior biomicroscopy 4, anterior biomicroscopy 9, and gonioscopy, the examiners disagreed and thus Dr. Martuccio received only 8.5 points out of a possible 17 points.

When the case came on for hearing, the Board did not call as expert witnesses the examiners who determined that Dr. Martuccio had failed to properly perform the four procedures in question. Instead, the agency called a practicing Florida optometrist with 15 years experience. Dr. Martuccio proffered himself as an expert in optometry. Counsel for the Board objected, stating that Dr. Martuccio should not be qualified as an expert witness since he had not passed the Florida licensing examination, and argued that "just by the nature of his having licenses in [Ohio and Pennsylvania] does not qualify him as an expert in optometry." The hearing officer accepted the tender of Dr.

Martuccio as an expert.

The findings of fact entered in this case clearly demonstrate that the hearing officer relied in large degree upon Dr. Martuccio's testimony.

As to the binocular indirect opthalmoscopy, the hearing officer accepted Dr. Martuccio's testimony that the subject patient remained still during the examination process and thus concluded that one of the graders made a mistake in his evaluation that this demonstration was "out of focus." On the anterior biomicroscopy 4 examination, the applicant is required to use a slit lamp to project a beam of light into the patient's eye. One grader concluded that Dr.

Martuccio erroneously projected an optic section rather than a parallelpiped from the slit lamp. Dr. Martuccio testified, however, that he did not change the adjustment on the lamp which controls the width of the beam of light.

Accepting this testimony, the hearing officer decided that one of the examiners, rather than Dr. Martuccio, was mistaken. For anterior biomicroscopy 9, the applicant is required to focus on vitreous strands on the anterior vitreous of the eye. In healthy patients, such vitreous strands are not present, and the anterior vitreous will appear clear when illuminated by a beam of light from the slit lamp. The examiner who failed Dr. Martuccio on this procedure observed that vitreous strands were not visible. Dr. Martuccio explained, however, that the subject patient had a healthy eye which did not have vitreous 4 strands.

The hearing officer accepted this testimony and concluded that the examiner's comment concerning vitreous strands was inappropriate, indicating he used an erroneous criterion. On the gonioscopy examination, one of the examiners commented that the structures of the eye which are examined in this procedure were out of focus. The hearing officer accepted Dr. Martuccio's testimony that

the subject patient did not move, and accordingly that the structures remained in focus during the examination.

Based upon the foregoing analysis, the hearing officer recommended that Dr.

Martuccio be awarded 8.5 additional points on the clinical portion and accordingly that he should achieve a passing score.

The Board of Optometry disagreed, making the following pertinent conclusions:

Petitioner's testimony. . . that he properly performed the four procedures in question was only supported by Petitioner's self serving testimony and was controverted by evidence that one examiner graded the Respondent

[sic] as not completing these procedures correctly. Respondent's [sic] evidence

alone was not competent substantial evidence.

* * *

There is no competent substantial evidence that Petitioner properly performed the four procedures in question, or that he is capable of using those instruments which he utilizes daily in his practice.. . . The petitioner has not shown by competent substantial evidence that an error occurred in the grading of his examination. Any error in grading, if an error occurred, has not been shown by petitioner to be the exclusive province of the examiner in each procedure who awarded him zero points.

In effect, the Board found that despite Dr. Martuccio's background as a graduate optometrist, licensed in Ohio and Pennsylvania, and accepted by the hearing officer as an expert witness, his testimony could not serve as competent substantial evidence for the hearing officer's conclusions.

A Florida administrative agency sitting to review a recommended order from a hearing officer may not reject or modify the findings of fact contained in such recommended order unless the agency first determines from a review of the complete record, and states with particularity in the order, that the findings were not based upon competent substantial evidence. Subsection 120.57(1)(b)10, Fla. Stat. (1991). Factual issues susceptible of ordinary methods of proof that are not infused with policy considerations are the prerogative of the hearing officer as the finder of fact. McDonald v. Department of Banking and Finance,

346 So.2d 569 (Fla. 1st DCA 1977). It is for the hearing officer to consider all the evidence presented, resolve conflicts, judge credibility of witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact based on competent substantial evidence. Heifetz v. Department of Business Regulation, Division of Alcoholic Beverages & Tobacco, 475 So.2d 1277 (Fla. 1st DCA 1985). We choose not to discard these fundamental principles of administrative law simply because the hearing officer has judged the credibility of fact and opinion testimony presented by the applicant, who has himself qualified as an expert witness.

Persons having a pecuniary or proprietary interest in the outcome of litigation are not disqualified from testifying under the Florida Evidence Code.

Subsection 90.601, Fla. Stat. (1991); Charles W. Ehrhardt, Florida Evidence, Subsection 601.1 (1993 Ed.). Interest merely goes to the credibility of the evidence. Id. Expert testimony may be given by a witness qualified as an expert by "knowledge, skill, experience, training, or education." Subsection 90.702, Fla. Stat. (1991). This court has ruled that a trial judge commits reversible error by finding that a witness, who is otherwise qualified, could not appear as an expert because he was not licensed as a psychologist in the state of Florida. Rose v. State, 506 So.2d 467 (Fla. 1st DCA), rev. denied,

513 So.2d 1063 (Fla. 1987); see also, Lee County Electric Cooperative, Inc. v. Lowe, 344 So.2d 308 (Fla. 2d DCA 1977). Neither Dr. Martuccio's personal interest in his own case, nor his lack of licensure in Florida rendered his testimony incompetent. Thus the hearing officer acted within her prerogative to rely upon Dr. Martuccio's testimony as competent substantial evidence to support her conclusions. The Board, on the other hand, exceeded its statutory authority by rejecting findings of fact that were supported by competent substantial evidence.

The Board relies upon Robinson v. Florida Board of Dentistry, Department of Professional Regulation, 447 So.2d 930 (Fla. 3d DCA 1984), for the proposition that the testimony of one interested witness does not reach the level of competent substantial evidence as required by section 120.57. The Robinson case, however, arose out of a license suspension proceeding. Relying upon this court's decision in Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981), the Third District noted that such a proceeding is penal in nature, and declined to uphold a suspension based solely upon the testimony of a competing professional. The court further noted the adverse witness' continuing financial interest in the case, and expressly found the witness' testimony "suspect." 447 So.2d at 932. The nature of the proceeding in Robinson differs significantly from the current case, and we do not find it controlling. Cf.

Falk v. Beard, 614 So.2d 1086, 1089 (Fla. 1993)("It would be an anomalous situation indeed if the testimony of one against whom a complaint is lodged could never form the basis for competent, substantial evidence").

REVERSED and REMANDED for further proceedings consistent with this opinion.

ALLEN and WOLF, JJ., CONCUR.

================================================================= DISTRICT COURT REMAND ORDER

DOAH CASE NO. 93-5385F ESTABLISHED

FEES CASE WAS DISMISSED WITHOUT A HEARING ON 11/03/95

=================================================================

DISTRICT COURT OF APPEAL, FIRST DISTRICT

Tallahassee, Fl. 32301

Telephone (904) 488-6151

DATE August 12, 1993

CASE NO. 92-1535

LT 91-2354

Appellant's motion for attorney's fees and costs is granted. The case is remanded to the Division of Administrative Hearings for a determination of the amount of fees and costs.

A TRUE COPY

ATTEST:

Jon S. Wheeler, Clerk

By: Deputy Clerk cc:

cc:

Kenneth G. Oertel Vytas Urba

Lisa S. Nelson Kathryn L. Kasprzak Robin Harmon

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION BOARD OF OPTOMETRY

GEORGE MARTUCCIO, O.D.,

Petitioner, 1ST DCA CASE NO. 92-01535 DOAH CASE NO. 91-2354

vs.

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION,

Respondent.

/

FINAL ORDER

THIS MATTER was heard by the Board of Optometry (hereinafter Board) pursuant to Section 120.57(1)(b)10, Florida Statutes, and the remand of the First District Court of Appeal, on September 1, 1993, in Tampa, Florida, for consideration of the Hearing Officer's Recommended Order (a copy of which is attached) in the case of George Martuccio vs. Department of Business and Professional Regulation. At the hearing before the Board, Petitioner was not present. The Department appeared through its counsel, Charles Faircloth. Upon consideration of the Court's Opinion and the Hearing Officer's Recommended Order and having been otherwise fully advised in its premises, the Board makes the following rulings, findings and conclusions:

FINDINGS OF FACT

1. The Hearing Officer's Recommended Findings of Fact are approved and adopted and are incorporated herein by reference.

   
   

2. There is competent, substantial evidence to support the Board's findings herein.

CONCLUSIONS OF LAW

1. The Board has jurisdiction over the parties and subject matter of this case pursuant to Section 120.57 and Chapter 455 and 466, Florida Statutes.

   
   

2. The findings of fact set forth above establish that Petitioner should be awarded 8.5 additional points on the- September 1990 Optometry licensure examination and Petitioner should also therefore receive an overall passing score.

DISPOSITION

In light of the foregoing Findings of Fact and Conclusions of Law the Board hereby determines that the recommendation of Hearing Officer is appropriate as set forth in the Recommended Order.

WHEREFORE, it is found, ordered, and adjudged that the Petitioner shall receive a passing score on the September 1990 Optometry licensure examination.

This Final Order becomes effective upon its filing with the Clerk of the Department of Business and Professional Regulation.

NOTICE

The parties are hereby notified pursuant to Section 120.59(4), Florida Statutes, that an appeal of this Final Order may be taken pursuant to Section 120.68, Florida Statutes, by filing one copy of a Notice of Appeal with the Clerk of the Department of Business and professional Regulation and one copy of a Notice of Appeal with the required filing fee with the District Court of Appeal within thirty (30) days of the date this Final Order is filed.

DONE and ORDERED this 3rd day of November, 1993.

BOARD OF OPTOMETRY

JOHN B. LEWIS, O.D., CHAIRMAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order and its attachments have been forwarded by U.S. Mail to George Martuccio, O.D., c/o Ken Oertel, Esquire, Post Office Box 6507, Tallahassee, Florida 32314-6507 and to Linda M. Rigot, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550, and by hand delivery to Charles Faircloth, Senior Attorney, Department of Business and professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399- 0792 on this 3rd day of November, 1993.

Docket for Case No: 91-002354

Orders for Case No: 91-002354