Judges: WILLIAM B. THOMAS
Agency: Department of Health
Latest Update: Jul. 27, 1987
Summary: Petition denied. Petitioner failed to show exam was improperly conducted, unfairly graded, or score achieved was erroneous.
86-4709STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DAVID J. PENNELL, )
)
Petitioner, )
)
vs. ) CASE NO. 86-4709
)
DEPARTMENT OF PROFESSIONAL )
REGULATION, BOARD OF )
ACUPUNCTURE, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William B. Thomas, held a formal administrative hearing in this case on June 2, 1987, in Miami, Florida. The transcript was received on June 25, 1987, and the parties were allowed 10 days thereafter to submit proposed findings of fact and conclusions of law. The proposed findings of fact submitted by the Respondent are accepted, and have been generally incorporated herein. Nothing has been received from or on behalf of the Petitioner.
APPEARANCES
FOR PETITIONER: David J. Pennell, pro se
418 Northeast River Drive Deerfield Beach, Florida 33441
FOR RESPONDENT: Chester G. Senf, Esquire
130 North Monroe Street Tallahassee, Florida 32399-0750
By letters dated October 17 and 31, 1986, the Petitioner requested an administrative hearing to contest the failing grade he received on the acupuncture examination held on July 18-20, 1986. Generally, the Petitioner claims that the failing score he received was due to grading errors and irregularities in the grading of one exam question. He also challenges the conduct of the model upon whom his demonstration of a point location was made.
The Petitioner testified in his own behalf and presented two other witnesses, both of whom also failed the 1986 acupuncture examination. The Respondent presented two witnesses, a test development specialist and an examiner for the 1986 examination who has practiced acupuncture for 28 years.
FINDINGS OF FACT
The Petitioner, David J. Pennell, is an applicant for licensure by examination to practice acupuncture in the State of Florida.
The Petitioner took the acupuncture examination on July 18-20, 1986.
He obtained a total overall grade of 68 on the practical portion of the test. A grade of 70 is required to pass the examination.
The Petitioner challenges the grading of the answer he gave to the question requiring him to locate the acupuncture point Gallbladder 34. In order to demonstrate the point locations on the examination, applicants are given small round stickers which must be correctly placed on the body of a model. If the sticker is not placed at the correct acupuncture point, the answer is graded incorrect. The Petitioner's placement of the sticker at the acupuncture point Gallbladder 34 was graded incorrect.
The Petitioner testified that he had observed his model consuming beer, and that as a result the model's hand was shaking and he was sweating profusely. Consequently, the Petitioner contends that it was difficult to keep the stickers identifying various points on the model's hand. In addition, the Petitioner testified that it took 15-20 minutes for an examiner to arrive at his examination room to grade this portion of the test. Thus, the Petitioner questions the grade he received on the location of the point for Gallbladder 34 because some of the stickers may have fallen off the model or their placement may have been altered. However, there is little evidence presented to support these contentions. For the most part, only speculation was offered by the Petitioner.
Both of the Petitioner's witnesses unsuccessfully took the 1986 acupuncture examination with the Petitioner, but neither of them could testify that the models they used were the same model used by the Petitioner. They were also unable to corroborate any of the Petitioner's testimony regarding beer drinking by the model, or shaking or profuse sweating by the model.
The Respondent's test development specialist acted as a monitor during the July, 1986, acupuncture examination. All of the monitors for this examination were available to the candidates continuously during the examination. The candidates had the option to go to another exam room if there was any problem. The Petitioner never made any complaint that his model was unsatisfactory.
After the candidates finished the practical portion of the examination an examiner came in to grade it within 2-3 minutes. The temperature in the examination rooms was so cold that the models required blankets. The consumption of alcoholic beverages during the examination is prohibited, and no models were seen drinking anything but soft drinks. None of the monitors reported any such complaints.
The Respondent's examiner testified similarly regarding the room temperature and the time it took examiners to enter the examination room. He did not observe any of the models drinking beer during the examination. Even if a model had been drinking beer, it would not affect a candidate's placement of the stickers unless a model's drinking caused him to fall off the table.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case pursuant to Section 120.57(1), Florida Statutes.
Section 457.105(2)(c), Florida Statutes, requires an applicant for certification as an acupuncturist to pass an examination, which must include a practical examination. Subsection (3) of this statute exempts certain practitioners with oriental training but this exception is not applicable to this proceeding.
The Petitioner did not receive a passing score on the practical portion of the July, 1986, acupuncture examination. He has the burden of proof to demonstrate his entitlement to certification. Rule 28-6.008(3), Florida Administrative Code.
The Petitioner's testimony is not of sufficient quality or quantity to carry his burden of proof. It consists almost entirely of speculation, and the direct evidence was not corroborated by his witnesses. Both were refuted by the evidence presented by the Respondent. Thus, it cannot be concluded that the Petitioner was unfairly graded on the subject examination, that the score he achieved was erroneous, or that the examination itself was improperly conducted in any particular.
RECOMMENDATION
Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Acupuncture enter a Final Order dismissing
the challenge to and request for review of the Petitioner's score on the July,
1986, practical portion of the acupuncture examination.
THIS ORDER entered this 27th day of July, 1987 in Tallahassee, Leon County, Florida.
WILLIAM B. THOMAS
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 27th day of July, 1987.
COPIES FURNISHED:
Mr. David J. Pennell
418 NE. River Drive
Deerfield Beach, Florida 33441
Chester G. Senf, Esquire
130 North Monroe Street Tallahassee, Florida 32399-0750
Van Poole Secretary
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
Joe Sole, Esquire General Counsel
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
Marcelle Flanagan Executive Secretary Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
Docket for Case No: 86-004709
Orders for Case No: 86-004709
| Issue Date |
Document |
Summary |
|
Oct. 23, 1987 |
Agency Final Order
|
|
|
Jul. 27, 1987 |
Recommended Order
|
Petition denied. Petitioner failed to show exam was improperly conducted, unfairly graded, or score achieved was erroneous.
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