STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GEORGE VAZOULAS, )

)

Petitioner, )

)

vs. ) CASE NO. 92-2205

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF OPTOMETRY, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing by telephonic conference call before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings, on August 6, 1992.

APPEARANCES

For Petitioner: Dr. George Vazoulas, pro se

182-C Chestnut Ridge Drive Harrisonburg, Virginia 22801

For Respondent: Vytas S. Urba, Esquire

Department of Professional Regulation

1940 N. Monroe Street, Ste. 60

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUES

1. Did the conduct of the examiners in section 2 of the August 24, 1991 optometry licensing examination result in unfair, arbitrary, or capricious grading of that section of Petitioner's examination?

   
   

2. Was Petitioner's performance on the August 24, 1991 optometry licensing examination sufficient to meet the Board of Optometry's grading criteria for a passing score of 75 on those procedures which Petitioner challenged?

PRELIMINARY STATEMENT

Petitioner presented the oral testimony of Susan Vazoulas and testified in his own behalf. Petitioner's Exhibits 1-3, and 5-11 were admitted. Petitioner waived filing post-hearing proposals.

Respondent's Exhibits 1-6 were admitted. A transcript was filed in due course, and Respondent timely filed proposed findings of fact and conclusions of law.

Petitioner filed objections to Respondents proposed findings of fact.

These objections are here treated as a motion to strike respondent's proposed recommended order, and that motion is denied.

Respondent's proposed findings of fact have been ruled upon the appendix to this Recommended Order pursuant to Section 120.59(2) F.S.

FINDINGS OF FACT

1. Petitioner sat for the August 24, 1991 Optometry licensure examination.

   
   

2. He did exceedingly well on two of the three portions of the examination. His grade on the clinical portion (sections 1 and 2) was 71.5. The minimum passing score was 75.0.

   
   

3. Petitioner challenged the behavior of the examiners in section 2 of the clinical portion of the examination, and the grade he received for several individual procedures tested.

   
   

4. Petitioner's patient for the clinical examination was his wife, Susan Vazoulas. Mrs. Vazoulas testified that prior to Petitioner entering the examination room for section 2 of the clinical portion of the examination, she overheard the two examiners, one male and one female, discussing material already on their clipboards. The male examiner indicated he had given an "81". The female examiner indicated she had given an "84", but was a "hard liner." Petitioner was not present during this exchange. Mrs. Vazoulas did not see what was on the examiners' clipboards and could not testify with any certainty as to what was being discussed. Every reasonable inference suggests that the examiners' conversation did not apply to Petitioner's section 2 clinical test for the following reasons: The examiners' comments were made before the Petitioner entered the examination room and before he began to take his section

   2 clinical examination. The numbers "81" and "84" bear no relationship to any of Petitioner's scores on any portion of his licensure examination. The examiners for section 2 were not the examiners for section 1, whereon Petitioner scored 100%. If anything, had the examiners reached two divergent scores of 81 and 84, respectively, it would more likely suggest the presence of independent judging and the lack of collusion, instead of the presence of collusion and absence of independence as assumed by Petitioner in this instance.

   
   

5. The examination room in which section 2 of Petitioner's clinical examination was administered was very small, approximately 8 x 10 feet. During section 2, the two examiners separately viewed each of 16 procedures performed on Mrs. Vazoulas by Petitioner and after each procedure, they individually returned to their respective clipboards to record their scores. The two clipboards were placed on a countertop side by side while not in use.

   Petitioner and Mrs. Vazoulas each observed the examiners separately marking their respective clipboards but never saw what was written down by either of the examiners. Petitioner and Mrs. Vazoulas felt it would have been hard for each examiner to avoid seeing the score assigned by the other examiner, but neither Petitioner nor Mrs. Vazoulas observed any actual sharing of information or scores during Petitioner's section 2 clinical examination or afterwards.

   Petitioner and Mrs. Vazoulas testified in terms of the examiners having "the chance" to see each other's clipboard and "the opportunity" for collusion and absence of independence in grading. In this instance, Petitioner considered that identical grades given by both examiners was proof of their collusion and arbitrary and capricious grading. However, similarity of scores is equally susceptible of being interpreted as resulting from each examiner having observed

   the same performance by Petitioner on each of the 16 procedures and applied the same judging criteria to what s/he saw. The law does not presume illicit behavior without more evidence than that it "could have" happened.

   
   

6. Petitioner challenged his section 2 grade for clinical procedures 4-9 for biomicroscopy, alleging that he was graded 17.5 out of a possible 20 points while all parts were checked "yes". In fact, the score sheets show that all parts were not checked "yes" by both examiners. One examiner graded procedure four with "N" for "no". This could result in an "all or nothing" score of zero for that item. Assuming, arguendo, the "yes" and "no" were averaged, Petitioner's score still would not have amounted to the additional 2.5 points Petitioner alleged he was entitled to out of this section of the examination.

   
   

7. Respondent's Exhibit 2 is a document titled "Optometry Practical Examination Section 2 - Grading Standards August 1991." The instructions to the examiners state in the second paragraph of that document, "Comment on reason for any NO judgment. Comment if performance was a marginal YES." Thus, examiners could legitimately insert comments even where they responded "yes" in evaluating the performance of the candidate in a given procedure. They did so here.

   
   

8. Petitioner challenged his grade on procedure number 15, gonioscopy, stating that partial credit should have been given for the showing of the proper angle. Petitioner's Exhibits 1 and 2, the grade sheets for section 2, reflect that Petitioner received no credit from either examiner. Both "no" responses have comments recorded next to them.

   
   

9. Respondent's Exhibit 2, page 4, states the criteria for a "yes" response on procedure number 15, gonioscopy, as:

   
   

   1. Must be focused on nasal angle with proper illumination

   2. Gives proper response to question

      
      

      Both criteria must be satisfied to receive a "yes" response.

      
      

10. Petitioner and Respondent concur that Petitioner correctly demonstrated the angle required in procedure 15, gonioscopy, which satisfied one of the two required criteria to receive a "yes" from either examiner. Petitioner attempted, by extrapolation of procedure 5, to show that the remaining criterion was also met. He was not persuasive in this attempt.

    
    

11. The grade sheets reflect that Petitioner failed to satisfy the second criterion: to give the correct response to the question posed. Petitioner made no valid showing that he did answer the question correctly or that the points available from this answer would raise his total score 3.5 points for a passing grade.

    
    

12. Petitioner challenged his grade for procedure number 1, binocular indirect ophthalmoscopy (BIO). Petitioner admitted that he did this procedure incorrectly by using the 3:00 o'clock position, rather than the 9:00 o'clock position requested by the examiners but felt six points should not have been deducted and it should have been marked "yes, marginal," awarding him a majority of the six lost points. Petitioner did not demonstrate good cause within the grading criteria in evidence why he should have received the "majority," presumably four, points.

13. Petitioner presented no evidence concerning the grading of challenged procedures 11 and 14.

    
    

14. As to all of the foregoing, Petitioner's challenge to the effect that he did not understand the grading system was not sufficient to carry his burden of proof to establish that the examination, scoring, and/or grading system was arbitrary or capricious.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause pursuant to Section 120.57(1) F.S.

    
    

16. Herein, Petitioner had the burden to prove by a preponderance of the evidence that his performance of the examination merited the award of at least

    3.5 more points than he received, or alternatively, that the agency breached its rules for administering examinations.

    
    

17. As to procedures 4 through 9, biomicroscopy, Petitioner's lack of understanding as to how points are awarded was insufficient to meet that burden. Comments made by examiners in those instances in which the examiner gave the candidate a "yes" response are appropriate to document marginal performance by the candidate. Petitioner failed to meet his burden of showing by a preponderance of the evidence that the was unfairly graded on procedures 4 through 9.

    
    

18. Petitioner also failed to show that he was improperly graded for procedure 15, gonioscopy. He received no points because he did not satisfy both grading criteria necessary to receive a "yes" response from each examiner. The grade sheets do not provide for or permit partial credit to be awarded by an examiner. Because the examiner only grades a "yes" or "no" response, the candidate was graded on an "all or nothing" basis. Petitioner made no valid showing that his performance on this procedure merited the granting of additional points.

    
    

19. By his own admission that he did procedure number 1, binocular indirect opthalmoscopy (BIO), incorrectly, Petitioner has failed to prove that the examiners incorrectly graded him on that procedure.

    
    

20. Petitioner failed to prove by a preponderance of the evidence that he failed the examination through no fault of his own. He made no valid showing that the scores of the two examiners for section 2 were not "independent" as required by Department policy and rule.

    
    

21. Petitioner did not demonstrate the arbitrary or capricious administration of his examination. See, Harac v. Department of Professional Regulation, 484 So.2d 1333 (Fla. 3d DCA 1986).

    
    

22. Petitioner did not show that the grading or that the administration of the examination was devoid of logic and reason. Topp v. Board of Electrical Examiners for Jacksonville Beach, Florida, 101 So.2d 583 (Fla. 1st DCA 1958).

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Professional Regulation enter a final order ratifying the examination grade previously assigned to Petitioner.

DONE and RECOMMENDED this 15th day of September, 1992, at Tallahassee, Florida.

ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The De Soto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1992.

APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 92-2205

The following constitute specific rulings, pursuant to S120.59 (2) F.S., upon the parties' respective proposed findings of fact (PFOF)

Petitioner's PFOF:

None filed Respondent's PFOF:

1-6 Accepted except for unnecessary, subordinate on cumulative material.

7-13 Accepted except for subordinate material. It is noted that Petitioner bears the burden of proof herein, not Respondent.

COPIES FURNISHED:

Vytas J. Urba

Assistant General Counsel Department of Professional

Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

George L. Vazoulas

182C Chestnut Ridge Drive Harrisonburg, VA. 22801

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 Suite 60

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 cleast 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: 92-002205

Orders for Case No: 92-002205