STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ASA O. FLAKE, )

)

Petitioner, )

)

vs. ) CASE NO. 88-5997

) DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF CLINICAL ) SOCIAL WORKERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on May 1, 1989, in Tallahassee, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Thomas F. Oxner

Qualified Representative 8155 Sarcee Trail

Jacksonville, Florida 32244

For Respondent: E. Harper Field, Esquire

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0729 ISSUE

Whether or not Petitioner was qualified by virtue of her examination to be licensed as a Clinical Social Worker.

PRELIMINARY STATEMENT

At the commencement of formal hearing, Petitioner stated she wished to be represented by her son, Thomas F. Oxner. After diligent inquiry, the undersigned qualified Mr. Oxner as Petitioner's qualified representative upon the record. Petitioner testified in her own behalf and presented the oral testimony of Peggy Cummings, C.S.W., and had three out of four exhibits admitted in evidence. Respondent presented no case. No transcript was provided. All timely filed proposed findings of fact have been ruled on, pursuant to Section 120.59(2), F.S. in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner was a candidate for the clinical social worker examination given in February 1988. Due to excessive noise during the conduct of that

   examination and flaws in the examination itself and in the scoring of that examination, all the unsuccessful candidates, including Petitioner, were given an opportunity to take the April 1988, examination without cost.

   
   

2. Petitioner obtained a raw score of 95 on the practical theory portion of the April 1988, examination and a raw score of 96 is required for passing.

   
   

3. In the April 1988 test, Petitioner was initially issued a defective test booklet with two pages missing. Her discovery of the missing pages, attracting the proctor's attention to the problem, and then finishing the test using substitute pages from the proctors test copy created significant stress and anxiety for Petitioner in the course of the April 1988 testing procedure and lessened the time Petitioner could think about her answer to each question. However, Petitioner apparently was able to complete all the pages of the test and to turn it in for grading prior to the close of the testing procedure.

   
   

4. Petitioner did not notice for production at formal hearing the questions and answers from this April test and therefore they were not available at the time of formal hearing. Therefore, the Petitioner was unable to show which were the substituted pages, whether she had left any questions blank on the substituted pages, or that any of the questions she had answered which had been scored incorrect were part of the substituted pages.

   
   

5. Over Respondent's objection, the undersigned ruled that the Petitioner would be permitted to introduce evidence of the correctness of any of her answers which had been marked incorrect. In an attempt to do so, Petitioner testified to the content of a question she asserted was question 44 on the April 1988 examination, as she recalled that question. She testified to the wording of that question as she recalled it. Then she testified to the content of her answer as she recalled it and what she recalled to be the preferred answer of the graders.

   
   

6. There was some confusion in Petitioner's mind as to whether she was recalling a question from the February test or the April test and whether the preferred answer she recalled from her opportunity to review her test score after the April test was an answer to the exact question given her or from a "like" question/examination.

   
   

7. Therefore, there was no credible showing that the question as Petitioner recalled it was close to, or a facsimile of, a question that had been asked and incorrectly scored on Petitioner's April 1988 examination.

   
   

8. Although Petitioner and her expert witness, Peggy Cummings, a licensed clinical social worker, each testified that the answer Petitioner recalled giving to the question as she recalled it to be worded was a preferable answer to that answer which Petitioner claimed had been the preferred answer of the examination graders, their testimony is insufficient to establish a score which would make a difference of pass/fail for Petitioner. Ms. Cummings did not take the April examination and had not viewed the actual questions or Petitioner's actual answers. Her testimony was based entirely on what Petitioner told her the question had been and told her had been the preferred answer as Petitioner recalled those matters many months after the actual examination.

   
   

9. Due to the strong probability that other wording was employed either for the question or the answer at issue, and due to the absence of any clear evidence specifically setting out the exact content of a question which was answered correctly by the Petitioner but which was scored as incorrect by the

   Respondent Board, there is insufficient evidence to establish that Petitioner's score should be corrected to reflect a passing grade.

   
   

10. Respondent stipulated that the first examination in February, 1988, does not count against Petitioner and that she may legitimately take the examination two more times before having to take remedial courses in order to qualify for permission to take the licensing examination a fourth time.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter and parties of this cause. See, Section 120.57(1), F.S.

    
    

12. As the applicant seeking licensure, Petitioner bears the burden of showing entitlement to licensure. Florida Department of Transportation v.

    J.W.C. Company, Inc., 396 So.2d 778, 788 (Fla. 1st DCA 1981). In the instant case, Petitioner has not so demonstrated by a preponderance of the evidence.

    
    

13. While Petitioner has not demonstrated anything in the instant case which would cause her score to be raised above the passing threshold, she has demonstrated that she was at a significant and unusual disadvantage in the way that the test was administered to her in April of 1988. This significant and unusual disadvantage existed in the loss of cognitive time due to substituting the missing two pages. The fact that Petitioner was able to finish does not absolve Respondent of the duty to administer a test equitable to all applicants at a single sitting. While the loss of cognitive time does not specifically correlate into a passing grade, it is appropriate that Respondent provide Petitioner with another opportunity to take the clinical social worker's licensure examination without additional cost.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law it is recommended that the Board of Clinical Social Workers enter a final order denying Petitioner licensure upon the basis of the April 1988 examination but permitting her to take the next available licensure examination at no further cost.

DONE and RECOMMENDED this 24th day of May, 1989, in Tallahassee, Leon County, Florida.

ELLA JANE P. DAVIS

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1989.

APPENDIX TO RECOMMENDED ORDER

The following constitute specific rulings, pursuant to Section 120.59(1),

F.S. upon the parties' respective proposed finding of facts (PFOF): Petitioner's PFOF:

1-2 Accepted, except as to the reference which is to materials outside the record created at formal hearing.

1. Accepted, in part; the remainder is irrelevant, and it is also noted that the reference is to materials outside the record created at formal hearing.

2. Accepted, in part; the remainder is subordinate and unnecessary to the facts as found.

5-15 Rejected, in part because the bulk of the materials referenced are outside the record created at formal hearing. Also, most of the proposals constitute mere argument upon matters immaterial to the disposition of the sole issue at bar, or constitute argument with regard to free form agency action subordinate and unnecessary to the facts as found.

1. Rejected as argument, not a proposal of ultimate, material fact.

2. Petitioner's qualifications by education, training, and experience are excellent but subordinate and unnecessary to the facts as found and are not dispositive of the sole issue at bar.

18-20 Rejected for the reasons set out in the Recommended Order, as subordinate to the facts as found, and as not dispositive of the sole issue at bar.

21 Rejected as a mischaracterization of opponent's legal argument.

Respondent's PFOF:

1, and 5-8 Accepted as modified.

2-4 Rejected as further argument upon objections already ruled upon; and not a proposal of ultimate, material fact.

COPIES FURNISHED:

Thomas F. Oxner Qualified Representative 8155 Sarcee Trail

Jacksonville, Florida 32244

E. Harper Field

Deputy General Counsel

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0729

Linda Biedermann, Executive Director Board of Clinical Social Workers, Marriage and Family Therapist, and Mental Health Counselors

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0729

Kenneth Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0729

Docket for Case No: 88-005997

Orders for Case No: 88-005997