STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES B. COPPOLA, )

)

Petitioner, )

)

vs. ) CASE NO. 93-5809

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

BOARD OF OPTOMETRY, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, the Division of Administrative Hearings, by its duly assigned Hearing Officer, William R. Cave, conducted a formal hearing in the above-captioned matter on January 5, 1994, in Punta Gorda, Florida.

APPEARANCES

For Petitioner: James B. Coppola, pro se

254 Felton Avenue

Port Charlotte, Florida 33952

For Respondent: William M. Woodyard, Esquire

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0750

STATEMENT OF THE ISSUES

Whether the Petitioner achieved a passing score on the Laws and Rules Part of the August 13, 1993, Optometry Examination and thereby receiving an overall passing grade.

PRELIMINARY STATEMENT

By an Examination Grade Report dated September 15, 1993, the Respondent, Department of Business and Professional Regulation, Board of Optometry (Department) notified Petitioner that he had passed the Clinical, Certification and Pharmacology Parts of the August 13, 1993, Optometry Examination (examination) but had failed the Laws and Rules Part of the examination. By letter dated September 22, 1993, the Petitioner requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. By letter dated October 11, 1993, the Department referred this matter to the Division of Administrative Hearings for the assignment of a Hearing Officer and conduct of a hearing.

Petitioner initially challenged five questions in the Laws and Rules Part of the examination; however, at the beginning of the hearing Petitioner advised the undersigned that he had narrowed his challenges to questions 2, 12 and 24. Upon further review, the Petitioner dropped his challenge to question 12.

At the hearing, the Petitioner testified on his own behalf but presented no other witnesses. The Department presented the testimony of Lynn A. Flora.

Petitioner's exhibits 1 and 2, Department's exhibit 1 and Joint exhibits 1, 2 and 3 were received as evidence in this case.

There was no transcript of this proceeding filed with the Division of Administrative Hearings. The parties timely filed Proposed Recommended Orders. A ruling on each proposed finding of fact submitted by the parties has been made as reflected in an Appendix to the Recommended Order.

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. Petitioner was an examinee for the August 13, 1993, Optometry Examination administered by the Department.

   
   

2. The Department is the agency charged with the responsibility of administering the Optometry Examination.

   
   

3. Petitioner achieved a score of 80.00 on the Laws and Rules Part of the August 13, 1993, Optometry Examination.

   
   

4. The minimum passing score for the Laws and Rules Part of the August 13, 1993, Optometry Examination is 84.00.

   
   

5. The Petitioner received a passing score on the Clinical, Certification and Pharmacology Parts of the August 13, 1993, Optometry Examination; however, having failed the Laws and Rules Part of the examination, the Petitioner failed overall.

   
   

6. Petitioner challenges Questions 2 and 24 of the Laws and Rules Part of the August 13, 1993, Optometry Examination.

   
   

7. The written instructions for the August 13, 1992, Optometry Examination direct the examinee to select the "best answer" from the multiple choice of answers.

   
   

8. Question 2 is as follows:

   
   

   1. Disciplinary actions which may be taken by the Board of Optometry include

      1. imposing a fine not to exceed $2,500 for each count or separate offense.

      2. issuing a demand for an apology.

      3. placing an optometrist on probation for not more than three months.

      4. refusing to certify to the Department an application for licensure.

         
         

         The Department's answer was "D". The Petitioner chose answer "A".

9. Section 463.016(1), Florida Statutes, enumerates the acts that shall constitute grounds for which disciplinary actions specified in Section 463.016(2), Florida Statutes, may be taken by the Board of Optometry (Board). Section 463.016(2), Florida Statutes, provides as follows:

   
   

   (2) When the board finds any person guilty

   of any of the grounds set forth in subsection (1), it may enter an order imposing one or

   more of the following penalties:

   1. Refusal to certify to the department an application for licensure.

   2. Revocation or suspension of a license.

   3. Imposition of an administrative fine not

      to exceed $5,000 for each count or separate offense.

   4. Issuance of a reprimand.

   
   

10. Section 455.2273, Florida Statutes, requires that each board shall adopt by rule disciplinary guidelines applicable to each ground for disciplinary action which may be imposed by the board. In accordance with that legislative mandate and the authority granted the Board by the Legislature under Section 463.005, Florida Statute, the Board promulgated Chapter 21Q-15, Florida Administrative Code, which sets forth the range of penalties for administrative violations and patient care violations, both major and minor. Rule 21Q- 15.003(1)(b), Florida Administrative Code, provides as follows:

    
    

    (1) For Minor Administrative Violations the range of penalties are as follows:

    * * *

    1. second violation -- administrative fine of not less than $750 nor more than $2,500

       per count or offense and, if appropriate, a period of probation of not less than 3 months nor longer than 6 months.(Emphasis supplied)

       
       

       Rule 21Q-15.004(1)(a) and (2)(a), Florida Administrative Code, provides as follows:

       
       

       1. For Minor Patient Care Violations the range of penalties are as follows:

          1. first violation -- administrative fine of not less than $750 nor more than $2,500 per count or offense and, if appropriate, a period of probation of not less than 6 months nor more than 12 months.(Emphasis supplied)

             * * *

       2. For Major Patient Care Violations the range of penalties are as follows:

          1. first violation -- administrative fine of not less than $1,000 nor more than $2,500 per count or offense and, if appropriate, a period of not less than 12 months nor more than 18 months.(Emphasis supplied)

    
    

    As can be seen from the language of the above-cited rules, the answer Petitioner chose for Question 2 is only partially correct and therefore, not the best

    answer. Of all the answers provided for Question 2, answer "D" is the correct and best answer.

    
    

11. The Department's answer "D" is based on the statutory language of Section 463.016 (2)(a), Florida Statutes. Petitioner's answer "A" is based on the language in Rule 21Q-15.003(b), Florida Administrative Code, and Rule 21Q- 15.004(1)(a) and (2)(a), Florida Administrative Code.

    
    

12. Of all the examinees taking the August 13, 1992, Optometry Examination and answering the Question 2 on the Laws and Rules Part, 79 per cent selected "D" as the correct answer to Question 2 where only 17 per cent selected "A" as the correct answer to Question 2.

    
    

13. Question 24 is as follows:

    
    

    1. In disciplinary proceedings, the department shall

       1. determine the final order in each disciplinary case.

       2. determine the penalty of each violation found.

       3. expeditiously investigate complaints and present the investigative report of the department to the probable cause panel of the board.

       4. submit to the probable causes panel of the board all complaints.

    
    

    The Department's answer was "C". The Petitioner chose answer "A".

    
    

14. Section 455.225(2) and (6), Florida Statutes, provides in pertinent part as follows:

    
    

    (2) The department shall. . .expeditiously and thoroughly determine legal sufficiency and investigate all legally sufficient complaints. When its investigation is complete and legally sufficient, the department shall prepare and submit to the probable cause panel of the appropriate regulatory board the investigative report of the department. . . . . (Emphasis supplied)

    * * *

    (6) The appropriate board, . . . or the department when there is no board, shall determine and issue the final order in each disciplinary case. . . . .(Emphasis supplied)

    
    

    As can be seen from the above-cited statutory language, answer "C" is the correct and best answer while answer "A" is incorrect in that it is the Board that determines the final order in each disciplinary case, not the Department.

    
    

15. Of all the examinees taking the August 13, 1992, Optometry Examination and answering Question 24 on the Laws and Rules Part, 66 per cent selected "C" as the correct answer for Question 24 where only 12 per cent selected "A" as the correct answer for Question 24.

16. There is competent substantial evidence to show that the correct and best answer to Questions 2 and 24 were answers "D" and "C", respectively.

    
    

17. Questions 2 and 24 were not misleading in that they did not test subjects that were not covered in the Candidate Information Booklet for the August 13, 1993, Optometry Examination.

    
    

18. There is competent substantial evidence to show that Questions 2 and

    24 are valid and reliable test questions.

    
    

19. There is competent substantial evidence to show that the grade which Petitioner received on the Laws and Rules Part of the August 13, 1993, Optometry Examination was correct, fair and valid, and that the subsequent review session was not administered in an arbitrary or capricious manner.

    
    

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes.

    
    

21. The Petitioner, as the person seeking licensure, has the burden of establishing by a preponderance of the evidence that the facts support his entitlement to licensure. Florida Department of Transportation v. J. W. C. Co., Inc., (1 DCA Fla. 1981) and Rule 28-6.08(3), Florida Administrative Code. The Petitioner has failed to establish that his answers to Question 2 and 24 were the correct and best answers or that the Respondent administered or graded his examination arbitrarily, capriciously, or in a manner devoid of logic and reason.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a Final Order denying the relief sought by the Petitioner.

RECOMMENDED this day 18th of February, 1994, at Tallahassee, Florida.

WILLIAM R. CAVE

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 18th day of February, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5809

The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case.

Petitioner, James R. Coppola's Proposed Findings of Fact.

Petitioner did not number his proposed findings of fact; however, I have taken the liberty to number them 1 through 14, beginning with the second full paragraph.

1. Proposed findings of fact 1 and 3 are covered in the Preliminary Statement of the Recommended Order.

2. Proposed findings of fact 2, 11 and 13 are neither material nor relevant to this proceeding.

3. Proposed findings of fact 4 - 10, 12 and 14 are rejected for the reasons stated in Findings of Fact 7 - 19.

Respondent, Department's Proposed Findings of Fact.

Respondent has broken his proposed findings of fact into three categories and numbered each category separately; however, I have taken the liberty to renumber them 1 through 20, beginning with number 1 under Statement of the Case through 5 under Second Challenge.

1. The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(3,4); 8-9(10); 10(12); 11(18); 12(9); 14(7); 15(10); 16(14); 17(15); 18(18) and; 19-20(14).

2. Proposed findings of fact 2 - 7 are covered in the Preliminary Statement of the Recommended Order.

3. Proposed finding of fact 13 is adopted in Finding of Fact 10, except that portion concerning the statement that the language "not to exceed $2500" does not appear in Chapter 21Q-15, Florida Administrative Code, which is rejected. See the language of Chapter 21Q-15, Florida Administrative Code, in Finding of Fact 10.

COPIES FURNISHED:

James B. Coppola

254 Felton Avenue

Port Charlotte, Florida 33952

William M. Woodyard, Esquire Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0750

Jack McRay, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0750

Diane Orcutt, Executive Director Board of Optometry

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0750

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the 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 consult with the agency that will issue the final order in this case concerning their 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: 93-005809

Orders for Case No: 93-005809