STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FERNANDO BARJA, JR., )

)

Petitioner, )

)

vs. ) CASE NO. 83-250

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF OPTOMETRY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on 30 March 1983 at Tallahassee, Florida.

APPEARANCES

For Petitioner: Fernando Barja, Jr., pro se

179 Concord

Biloxi, Mississippi 39530

For Respondent: Drucilla Bell, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

By Letter of Appeal dated 11 January 1983, Fernando Barja, Petitioner, requested an appeal of the denial of licensure to him by the Board of Optometry, Respondent. As grounds therefor it is alleged that Petitioner will show that some of the answers he gave to the written examination questions are correct although marked wrong by Respondent, and that some questions were invalid for lack of clarity and should be disregarded.

At the hearing Petitioner called two witnesses, including himself; Respondent called one witness; and five exhibits, one of which is a deposition, were admitted into evidence. Petitioner's objection to the admissibility of the deposition on grounds that he did not participate in the taking of that deposition was overruled when facts were presented that Petitioner had been notified of the taking of the deposition by telephone conference call; that he was ready at the designated phone at the time specified while Respondent and the witness were a few minutes late; that Petitioner departed the designated phone to go to his residence after leaving his home phone number with his office; and that when Respondent and the deponent were ready for the deposition a few minutes later Petitioner was not at the designated phone, could not be contacted at the number left with his office, and could not be located through Information. Petitioner's explanation of why he left the location of the telephone number designated for the deposition was that it suddenly occurred to

him that he would have more privacy and be less likely to interruptions if he conducted the deposition from his home rather than from his office.

FINDINGS OF FACT

1. Petitioner qualified for and took the Florida examination for licensure as an optician during the period July 23-25, 1982. He is a licensed optometrist in Louisiana and is currently serving as an optometrist in the United States Air Force.

   
   

2. At this examination Petitioner passed all of the examination parts except for the section on Pharmacology in which he received an amended score of

1. A score of 70 is passing.

   
   

   1. Petitioner contests five of the questions for which his answer sheet was found to be incorrect. These are questions Nos. 6, 13, 16, 24, and 26. During his testimony petitioner conceded his answers to Questions 6, 13, 24, and

      26 were incorrect and were therefore correctly so graded on the examination. His sole case rests upon Question 16 and the correct answer thereto.

      
      

   2. Question 16 provides, with a choice of four answers:

      
      

      Topical hypersomatic solutions (hypertonic saline) are useful in:

      1. lubrication.

      2. corneal dehydration. C antibiosis.

         D reducing intraocular pressure.

         
         

         The correct answer is "B", and Respondent selected "D."

         
         

   3. During his cross-examination Petitioner acknowledged that "D" is an incorrect answer to Question 16. Petitioner testified he thought he had selected answer "C."

      
      

   4. Expert testimony was submitted that Question 16 is not artfully drafted because of the use of the word "useful." Had the words "in causing" or some other identifying verb been added, the meaning of the question would have been clearer. Since salt has the propensity of absorbing moisture, a saline solution is useful in removing excess fluid from the eye, i.e. corneal dehydration. Eighty-four percent of those who took this examination selected the correct answer to Question 16. Only six percent selected answer "D," the solution selected by Petitioner. One hundred three persons took this examination and 88 passed.

      
      

   5. When Petitioner's examination was initially graded he scored 64. Following his objections the questions were reviewed two times, with a final grade of 69 being awarded to Petitioner on the Pharmacology portion of the examination. The only answer to the four choices that comes close to describing the propensities of topical hypertonic solution is corneal dehydration.

      
      

   6. Examination questions are prepared by Respondent's staff and submitted to reviewers for comment prior to the examination being given. Subsequent to the examination, if questions concerning the accuracy of the questions and/or answers arise the examination is again reviewed and if either question or answer is found inappropriate the examinee is not marked off for such a wrong answer.

      CONCLUSIONS OF LAW

      
      

   7. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

      
      

   8. In these proceedings the burden is on Petitioner to prove, by a preponderance of the evidence, that he was unfairly graded on the examination. Florida Department of Transportation v. JWC Corp. & Department of Environmental Regulation, 396 So.2d 778 (Fla. 1st DCA 1971). In this endeavor he failed to establish a prima facie case to require Respondent to go forward with evidence, although Respondent did so.

      
      

   9. From the foregoing it is concluded that Petitioner failed to show, by a preponderance of the evidence, that Question 16 on the July 1982 examination for licensure as an optometrist was unclear or that any answer other than the designated accurate answer could be deemed to best answer this question. It is therefore

RECOMMENDED that the appeal of Fernando Barja be dismissed and this case CLOSED.

ENTERED this 28th day of April, 1983, at Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings Department of Administration

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 1983.

COPIES FURNISHED:

Fernando Barja, Jr.

179 Concord

Biloxi, Mississippi 39530

Drucilla Bell, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Ms. Mildred Gardner Executive Director Board of Optometry

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Fred M. Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 83-000250

Orders for Case No: 83-000250