Judges: STEPHEN F. DEAN
Agency: Department of Health
Latest Update: Jan. 09, 1987
Summary: The issue is whether the examination, its administration, or its grading were arbitrary or capricious.Petitioner failed to show acupuncture exam was arbitrary or capricious.
86-4165.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SU-JUNG SHIUEY, )
)
Petitioner, )
)
vs. ) CASE NO. 86-4165
)
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF ACUPUNCTURE, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, an administrative hearing was held before Stephen F. Dean, Hearing Officer with the Division of Administrative Hearings, on December 22, 1986, in Tallahassee, Florida. This case arose on the petition of Su-Jung Shiuey challenging the practical examination and score she received on the practical examination for licensure as an acupuncturist.
APPEARANCES
For Petitioner: Dr. Shian-Jan Shiuey, Ph.D.
(Petitioner's husband)
331 Bloomfield Avenue Nutley, New Jersey 07110
For Respondent: Jeffrey H. Barker, Esquire
Deputy General Counsel
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
ISSUE
The issue is whether the examination, its administration, or its grading were arbitrary or capricious.
FINDINGS OF FACT
Su-Jung Shiuey sat for the acupuncture licensure examination on July 18 through 20, 1986, in Orlando, Florida.
The examination included a requirement for candidates to demonstrate practical clinical skills including sanitation, needling technique, and point location.
A passing score of 70 on the clinical practical portion of the examination is required of candidates.
Su-Jung Shiuey failed to locate four points in the point location portion of the examination. See Respondent's exhibits 3 and 4. No evidence was presented that this portion of the examination was not fair or was not graded fairly.
Su-Jung Shiuey failed to demonstrate proper needling techniques. See Respondent's exhibits 2 and 3. No evidence was presented that this portion of the examination was not fair or was not graded fairly.
Each of the examiners was a licensed acupuncturist in Florida.
Each of the examiners worked with a co-examiner, and all examiners are required to score candidates independently.
Each of the examiners' grade sheets for these two portions of the examination made the same findings and similar observations.
Su-Jung Shiuey received 66 points on the clinical practical portion of the examination and was denied licensure.
Su-Jung Shiuey presented no independent testimony or evidence to discredit the qualifications of Respondent's witnesses or evidence.
CONCLUSIONS OF LAW
This Recommended Order is entered pursuant to the provisions of Chapter 120, Florida Statutes. The Department of Professional Regulation has the authority to administer and grade examinations for licensure as acupuncturist pursuant to Chapter 457, Florida Statutes.
In challenging a licensure examination score, the burden of proof is with the Petitioner. The Petitioner must show by a preponderance of the evidence that the examination or its grading was arbitrary or capricious. Unless that obligation is met, the Petitioner fails. The Petitioner, Su-Jung Shiuey, failed to present sufficient evidence to demonstrate that the examination she challenges was arbitrary or capricious in any sense. To the contrary, the preponderance of the evidence in this matter shows that the examination was fair and fairly administered.
RECOMMENDATION
Based on the foregoing, it is RECOMMENDED:
That Dr. Su-Jung Shiuey's request for increased score, or reexamination without fee, should be DENIED.
DONE AND ORDERED this 9th day of January, 1987, in Tallahassee, Florida.
STEPHEN F. DEAN
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1987.
COPIES FURNISHED:
Dr. Su-Jung Shiuey (Petitioner's husband)
331 Bloomfield Avenue Nutley, New Jersey 07110
Jeffrey H. Barker, Esquire Deputy General Counsel Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
Marcelle Flanagan, Executive Director Board of Acupuncture
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Fred Roche, Secretary
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Wings Benton, General Counsel Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Docket for Case No: 86-004165
Orders for Case No: 86-004165
