STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES E. MARINO, D.C., )

)

Petitioner, )

)

vs. ) CASE NO. 88-4011

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF CHIROPRACTIC ) EXAMINERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a formal hearing was conducted on December 19, 1988, at Ocala, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

For Petitioner: James E. Marino, D.C., pro se

210 South Street

Daytona Beach, Florida 32014

For Respondent: William A. Leffler, III, Esquire Staff Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

ISSUES AND INTRODUCTION

The issue in this case is whether the Petitioner is entitled to a passing grade on the November, 1987, Chiropractic (Proprietary Drug) licensure examination. The Petitioner challenged two questions on that examination, but at the hearing presented evidence regarding only one of the challenged questions, namely, question 29. The Petitioner testified on his own behalf, but did not call any other witnesses. The Petitioner also presented copies of pages from several published reference books. The parties stipulated that official recognition of those pages could be taken. The Petitioner also offered other documents which were rejected as exhibits and are not included in the record.

The Respondent presented the testimony of one witness, an expert in the fields of pharmacy and pharmacology. The Respondent also offered several exhibits which were received in evidence. Following the hearing, the parties were allowed until January 9, 1989, within which to file their proposed recommended orders. The Petitioner filed a timely proposed recommended order, the factual aspects of which are addressed in the appendix to this recommended order. The Respondent did not file a proposed recommended order.

FINDINGS OF FACT

Based on the proceedings at the formal hearing in this case, I make the following findings of fact.

1. In November of 1987, the Petitioner took the chiropractic licensure examination. The Petitioner has been assigned a score of 73.3 on the proprietary drug portion of that examination. A score of 75 is the minimum passing score on the proprietary drug portion of the examination. If the Petitioner is given credit for one additional question, he will be entitled to a passing score on the subject portion of the examination.

   
   

2. The Petitioner was not given credit for his answer choice on question number 29. He chose answer B. The Respondent contends that the only correct answer choice is answer A. The issue of whether the Petitioner is entitled to credit for his answer choice on question number 29 turns on whether use of an inhalant containing epinephrine is seriously contraindicated by both of the following conditions: angina pectoris and pregnancy. The use of such an inhalant is seriously contraindicated by the condition of angina pectoris. Epinephrine should never be administered to a patient who suffers from angina pectoris. The use of such an inhalant is not seriously contraindicated by the condition of pregnancy. An epinephrine based inhalant should be used with caution during pregnancy, but the condition of pregnancy does not contraindicate the use of such an inhalant.

   
   

3. The Petitioner's choice of answer B is an incorrect choice, because the condition of pregnancy does not seriously contraindicate the use of a inhalant containing epinephrine. Therefore, the Petitioner is not entitled to credit for his answer to question number 29.

   
   

   CONCLUSIONS OF LAW

   
   

   Based on the foregoing findings of fact and on the applicable statutes, rules, and court decisions, I make the following conclusions of law.

   
   

4. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sec. 120.57, Fla. Stat.

   
   

5. In a case of this nature, the burden of proof is on the Petitioner to demonstrate by the preponderance of the evidence his entitlement to the relief sought. Where he fails to do so, the relief sought must be denied.

   
   

6. Here the greater weight of the evidence demonstrates that the Petitioner is not entitled to credit for his answer to question number 29 on the subject examination. Accordingly, there is no lawful basis upon which to change the Petitioner's score on the subject examination.

RECOMMENDATION

Based on all of the foregoing, it is recommended that a final order be issued assigning to the Petitioner a final grade of 73.3 and concluding that the Petitioner has failed the subject examination.

DONE AND ENTERED this 18th day of January, 1989, at Tallahassee, Florida.

MICHAEL M. PARRISH

Hearing Officer

Division of Administrative Hearings The Oakland Building

2900 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4011

The following are my specific rulings on all proposed findings of fact submitted by all of the parties.

Findings proposed by Petitioner:

The Petitioner's proposed recommended order consists of four unnumbered paragraphs, each of which is more in the nature of argument than in the nature of proposed findings of fact. Nevertheless, to the extent those paragraphs assert or imply factual matters, they are addressed as follows:

First Paragraph: Rejected as contrary to the greater weight of the evidence.

Second Paragraph: Rejected as contrary to the greater weight of the evidence. Angina pectoris is the only correct answer.

Third Paragraph: Rejected as contrary to the greater weight of the evidence.

Fourth Paragraph: Rejected as constituting a conclusion which is contrary to the greater weight of the evidence.

Findings proposed by Respondent:

(No findings were proposed by Respondent.)

COPIES FURNISHED:

James E. Marino, D.C., pro se

210 South Street

Daytona Beach, Florida 32014

William A. Leffler, III, Esquire Staff Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Pat Guilford, Executive Director Board of Chiropractic Examiners Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Kenneth Easley, General Counsel Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 88-004011

Orders for Case No: 88-004011