STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DON FLOYD KUTIK, )

)

Petitioner, )

)

vs. ) CASE NO. 92-1095

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF HEARING AID ) SPECIALISTS, )

)

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 March 27, 1992, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Don Floyd Kutik, pro se

9297 Gettysburg Road Boca Raton, FL 33434

For Respondent: Vytas J. Urba, Esquire

Department of Professional Regulation

1940 North Monroe Street Tallahassee, FL 32399-0792

STATEMENT OF THE ISSUE

The issue presented is whether Petitioner achieved a passing grade on the September 1991 hearing aid specialist examination.

PRELIMINARY STATEMENT

After Petitioner took the September 1991 examination to be licensed as a hearing aid specialist, Respondent notified him that he had achieved a passing grade on the practical portion of that examination but that he had failed to achieve a passing grade on the written portion of that examination. Petitioner timely filed a challenge to ten of the questions on that examination, alleging that they were ambiguously worded and/or that they had more than one correct answer. Pursuant to his request for a formal hearing regarding his challenge, this cause 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 expert testimony of Lydia Spottiswood and Joseph Ficarra. Respondent presented the expert testimony of Joann Sellers and of Ella Dudley Hall, the latter testifying from

the viewpoint of a psychometrician. Additionally, joint exhibits numbered 1-9 and Respondent's exhibits numbered 1-3 were admitted in evidence.

Petitioner's posthearing submittal contains no proposed findings of fact.

Respondent submitted posthearing proposed findings of fact in the form of a proposed recommended order. Although Respondent's proposed findings of fact numbered 1 and 4-8 have been adopted in this Recommended Order, Respondent's proposed findings numbered 2, 3 and 9 have been rejected as not being supported by the weight of the evidence in this cause.

FINDINGS OF FACT

1. Petitioner took the September 1991 hearing aid specialist examination. He achieved a passing score on the practical portion of that examination but failed to achieve a passing score on the written portion. He challenged ten questions from the written portion of that examination.

   
   

2. Just prior to the commencement of the final hearing in this cause, Respondent determined that it could not defend three of the questions challenged by Petitioner. Respondent therefore gave Petitioner credit for his answers to those three questions. Accordingly, Petitioner's score on the written portion of the examination is 74.2 after the adjustment made for the additional credit.

   
   

3. Question numbered 40 referenced situations necessitating factory repair. The Department contends that answer "A" is the correct answer. Petitioner chose answer "C." In order to defend answer "A," it was necessary for the Department's expert to assume facts not contained in the question. Due to the wording of the question, answer "C" is just as correct as answer "A." Accordingly, Petitioner should be given credit for his answer to question numbered 40.

   
   

4. Question numbered 97 referenced Florida's statutory requirement for medical clearance prior to fitting some persons with hearing aids. Petitioner chose answer "B." The experts testifying in this proceeding agreed that the correct answer was answer "A."

   
   

5. Question numbered 102 referenced minimal procedures. Petitioner chose answer "D." The Department's answer "B" is a comprehensive recital of the minimal procedures set forth by statute. One would not fit and sell a hearing aid based only on an otoscopic examination of the ear.

   
   

6. Question numbered 114 referenced the required contents of hearing aid packaging. Petitioner chose answer "D." Petitioner's answer reveals that he is confused about the requirements for packaging as opposed to the requirements for receipts. The correct answer is answer "B."

   
   

7. Question numbered 124 referenced a buyer's right to a refund. Petitioner chose answer "A." The correct answer was answer "B."

   
   

8. Question numbered 33 involved troubleshooting. Petitioner chose answer "B." The experts who testified in this cause agree that answer "A" is the correct answer.

   
   

9. Question numbered 66 involved the necessity for masking. Both Petitioner's answer "B" and the Department's answer "C" are correct answers. Further, Petitioner's answer "B" is a better answer than the Department's answer "C." The Department's position is not supported by the treatise on which it

   relies, and the Department's answer involves a testing procedure which is seldom used currently. Accordingly, Petitioner should be given credit for his answer to question numbered 66.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

    
    

11. Petitioner has the burden of proving by a preponderance of the evidence that he correctly answered questions but was not given credit for his correct answers. Petitioner has met that burden through expert testimony more persuasive than that offered by the Department as to questions numbered 40 and

1. Accordingly, Petitioner should be given credit for his answers to those two questions. Although neither party offered evidence as to whether Petitioner's receipt of credit for his correct answers to questions numbered 40 and 66 will be sufficient to raise his score on the written portion of the examination from the score of 74.2 awarded to him to the required passing score of 75, the answer to that question is simply a mathematical calculation to be made by the Department.

   
   

   RECOMMENDATION

   
   

   Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered:

   1. Dismissing Petitioner's challenge to questions numbered 33, 97, 102, 114, and 124;

      
      

   2. Giving Petitioner credit for his correct answers to questions numbered

      40 and 66; and

      
      

   3. Finding that Petitioner achieved a passing score on the September 1991 hearing aid specialist examination if his recalculated score is now 75 or higher.

DONE and ENTERED this 22nd day of May, 1992, at Tallahassee, Florida.

COPIES FURNISHED:

Don Floyd Kutik, pro se 9297 Gettysburg Road Boca Raton, FL 33434

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 22nd day of May, 1992.

Vytas J. Urba, Esquire Department of Professional

Regulation

1940 North Monroe Street Tallahassee, FL 32399-0792

Kaye Howerton, Executive Director Department of Professional

Regulation

Board of Hearing Aid Specialists 1940 North Monroe Street Tallahassee, FL 32399-0792

Jack McRay, General Counsel Department of Professional

Regulation

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: 92-001095

Orders for Case No: 92-001095