STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VICTOR CHIN, )

)

Petitioner, )

)

vs. ) CASE NO. 86-1001

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF ACUPUNCTURE,)

)

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 8, 1986, in Miami, Florida.

Petitioner Victor Chin was represented by Bruce Alexander, Esquire, Miami, Florida; and the Respondent Department of Professional Regulation, Board of Acupuncture, was represented by H. Reynolds Sampson, Esquire, Tallahassee, Florida.

Respondent notified Petitioner that he had failed the portion of the 1985 acupuncture examination that he had taken, and Petitioner requested a formal hearing on the results of his examination. Accordingly, the issue for determination herein is whether Petitioner success fully completed the portion of the acupuncture examination which he took in July of 1985.

Petitioner testified on his own behalf and presented the testimony of Linda

1. Chin and Marcelle Flanagan. Respondent presented no witnesses. Petitioner's Exhibits numbered 1-13 and Respondent's Exhibits numbered 1-3 were admitted in evidence.

   
   

   Both parties requested and were granted leave to file proposed findings of fact in the form of proposed recommended orders. Respondent failed to do so.

   Petitioner's proposed findings of fact numbered 1, 2, 8, 9, and 12 have been adopted either verbatim or in substance in this Recommended Order. The remainder of Petitioner's proposed findings of fact have been rejected as follows: 3 and 4 as not constituting findings of fact; 5-7, 11, 13, 14, and 16 as not being supported by the evidence; 10 as being contrary to the evidence; 15 as being subordinate; and 17 as being irrelevant.

   
   

   FINDINGS OF FACT

   
   

   1. Petitioner applied for and took the 1982 acupuncture examination consisting of four parts. He failed Part IV the clinical practical, or hands- on, part of the examination dealing with needle insertions, manipulation and needle removal, patient care, sanitation and antiseptic application.

   2. In 1983 the Florida Legislature created the Board of Acupuncture within the Department of Professional Regulation and empowered the Board with the authority to adopt rules. Perhaps in conjunction with that transfer of authority, the 1983 acupuncture examination was cancelled, and no examination was given during 1983. Effective August 13, 1984, the Board enacted rules regulating the examination and re-examination of acupuncturists.

      
      

   3. In October, 1984, a restructured three-part acupuncture examination was administered. The practical Part of that examination, Part III, was divided into two sections: the written practical section and the clinical practical section. Petitioner took the clinical practical section of Part III but was not required to take the written practical section of Part III. Petitioner again failed the clinical practical section.

      
      

   4. In December, 1984, Petitioner was notified in writing as to his 1984 examination results and was advised in an accompanying document that the deadline for filing an application to retake the acupuncture examination in 1985 would be May 24, 1985. That same accompanying document also advised Petitioner that candidates who failed either section 1 or section 2 of Part III must retake both section 1 and section 2 of Part III.

      
      

   5. Petitioner made the decision that he would not take the 1985 acupuncture examination but rather would wait until the 1986 acupuncture examination was given. However, when Petitioner "got laid off" from his employment, he decided to take the 1985 examination, mailing his application therefor the day before the deadline.

      
      

   6. In July, 1985, Petitioner retook Part III of the acupuncture examination. Petitioner received a score of 54 on the written practical section and a score of 65 on the clinical practical section. A score of 70 or greater on both sections is required in order to achieve a passing grade for Part III.

      
      

   7. Petitioner requested a review of his grades. That review revealed that although errors were found in scoring the written practical section, Petitioner's adjusted grade on that portion of the practical Part of the examination remained below the required 70. The review of the clinical practical section of that Part of the acupuncture examination revealed that both examiners who graded Petitioner on the clinical practical section evaluated Petitioner identically as to those areas in which Petitioner's performance was inadequate, agreeing item by item.

      
      

      CONCLUSIONS OF LAW

      
      

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

      
      

   9. Prior to the October, 1984, examination the Board adopted Rule 21AA- 3.04(4)(b), Florida Administrative Code, which provides, inter alia, that if an applicant fails either section 1 or section 2 of the practical examination (Part III), then he or she will have failed the practical examination. This provision also appears on the December 3, 1984 Information Sheet sent to Petitioner with his 1984 examination results.

      
      

   10. Also prior to the October, 1984, examination the Board adopted Rule 21AA-3.05(1) and (3), Florida Administrative Code, which provides as follows:

       1. Any applicant who fails the examination shall be entitled to re-examination. Those applicants not achieving a score of 70 or better on a scale of 100 on Parts I, II and sections 1 and 2 of the practical examination will have failed that part of the examination and shall be required to retake and pass only that part failed in order to be licensed as

          an acupuncturist. If an applicant fails the examination three consecutive times they must attend a tutorial and an educational program approved by the Board. At that time the applicant shall be required to take and pass the complete state examination for licensure to be licensed as an acupuncturist.

          (3) Notwithstanding the provisions of 457.105, Florida Statutes, all candidates who took and failed any portion of the August 1982

          acupuncture examination and all candidates who applied to take the March 1983 acupuncture examination who were qualified but failed to take the examination because it was cancelled shall be entitled to retake only the compara- ble portion(s) at two of the subsequent three administrations. All other applications for examination filed before July 1, 1983, shall be null and void. An applicant shall be

          required to be re-examined on comparable part(s) as provided in 21AA-3.04 that he/she has

          failed as provided in the August 1982 examina- tion grade report.

          
          

   11. Having failed the clinical practical part of the examination in 1982, Petitioner was required to retake only the clinical practical examination pursuant to the re-examination Rule 21AA-3.05(3). When Petitioner retook the clinical examination in 1984 and failed one section of Part III, he failed all of Part III since the rules of the Board clearly provide that the failure of one section of that practical examination deems an applicant to have failed both sections of the practical examination. Petitioner having so failed one section in 1984 required him to take both sections in 1985. His failure of both sections in 1985 requires him, since he has failed the examination three consecutive times, to attend a tutorial/educational program approved by the Board before he can again take the examination.

       
       

   12. Petitioner argues that since he was not required to take both sections of Part III in 1984, he should not have been required to take both sections of Part III in 1985. Petitioner's argument is without merit. In 1984, he was retested based upon the part he failed in 1982; however, in 1985 he was retested based upon the part he failed in 1984. Petitioner's argument requires reading only some portions of the Board's rules while ignoring the remainder even though it is a well settled rule of statutory construction that all provisions should be read together in a way that will give meaning to all provisions. Petitioner has failed to prove that the Board's interpretation of its rules and application of them to him is arbitrary, unreasonable, or capricious.

       
       

   13. Petitioner further alleges that the Board failed to provide appropriate test review procedures and failed to maintain records of the test

       results. Petitioner has failed to meet his burden of proof regarding this allegation. Rather, the evidence is clear that Petitioner was able to review the written practical section of Part III to the extent that errors in grading were shown by him to have occurred, and his grade was adjusted upward although he still failed to achieve the required passing score of 70. As to the clinical practical section of Part III, Petitioner was provided with the grading sheets indicating those areas in which his performance was deficient. Since Petitioner failed the written practical portion of the examination, even had he shown that the review procedures as to the clinical practical section were inadequate, Petitioner would still fail all of Part III since he failed section 1 of Part III.

       
       

   14. Petitioner also challenges his grade on the 1985 acupuncture examination by alleging that since the Board only gave him three to four weeks notice that he would have to take both sections 1 and 2 of Part III, he became so upset that he was unable to be successful on either section 1 or section 2 of Part III. Petitioner's allegation is contrary to the evidence in this cause. First, the requirement that he take both sections of Part III existed for almost a year prior to Petitioner taking the 1985 examination. Second, Petitioner was notified in writing in December 1984 that the next time he took the acupuncture examination he would be required to take both sections 1 and 2 of Part III. Third, Petitioner waited until the deadline before filing his application to take the 1985 examination so that if Petitioner had insufficient time to study it is Petitioner's own conduct which caused him to have little time to study. (It is interesting to note that Petitioner's application for the 1985 examination requests that he be allowed to retake Part III.) Fourth, if Petitioner were under emotional stress interfering with his limited study time, it is much more likely that that stress was caused by him losing his job and not from his deciding voluntarily to take the examination. Accordingly, Petitioner's allegation that "special equities exist" that should permit him to retake the examination without first fulfilling the Board's requirements as to additional training is both legally and factually deficient.

       
       

   15. Petitioner's last argument is that he has been discriminated against by the Board. Petitioner's argument rests with the Board's treatment of then- applicant Carolyn Griffis. Petitioner has failed to sustain his burden of proving what the Board's treatment of Griffis actually was. What Petitioner did prove is that Griffis, like Petitioner, failed the clinical practical portion of the 1982 examination; Griffis, like Petitioner, retook the clinical practical portion of the 1984 examination and again failed it; Griffis, like Petitioner, applied to take the 1985 acupuncture examination; Griffis, unlike Petitioner, refused to take the written practical section when she appeared at the examination and only took the clinical practical section; and Griffis, unlike Petitioner, passed the clinical practical portion of the 1985 examination. It would appear that Griffis initially was denied licensure based upon the 1985 examination, and she petitioned for a formal hearing. Subsequently, the case was settled, and Griffis became licensed. Petitioner failed to prove the basis or reasons for that licensure in order to show how the Board's conduct as to Griffis should be applied to him particularly in view of the fact that Griffis passed the clinical practical section of the 1985 examination but Petitioner failed it. Petitioner having only introduced in evidence a copy of the petition for formal hearing filed by Griffis the disposition of the Griffis case is unclear, and can be of no avail to Petitioner.

       
       

   16. In short, Petitioner has failed to prove his competency to practice acupuncture by successfully completing the examination for licensure. The fact remains that Petitioner has taken the clinical practical section of the

examination three times and has failed that part of the examination on each occasion. The fact that Petitioner is now required to obtain additional education before taking the examination again is consistent with the legislative intent of requiring that licensed acupuncturists meet some minimum standard of competency.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is,

RECOMMENDED that a Final Order be entered finding that Petitioner failed both sections 1 and 2 of Part III of the 1985 acupuncture examination; denying Petitioner's request that his grade be set aside and that he be permitted to retake the examination without first completing the educational requirements; and denying Petitioner's application for certification to practice acupuncture in the State of Florida.

DONE and RECOMMENDED this 24th day of October, 1986, at Tallahassee, Florida.

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 1986.

COPIES FURNISHED:

Marcelle Flanagan, Executive Secretary Board of Acupuncture

130 North Monroe Street Tallahassee, Florida 32301

Fred Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Wings S. Benton, General Counsel Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Bruce Alexander, Esquire

9200 South Dadeland Boulevard Suite 515

Miami, Florida 33156

H. Reynolds Sampson, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 86-001001

Orders for Case No: 86-001001