STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RALPH MARTINEZ, )

)

Petitioner, )

)

vs. ) CASE NO. 89-0906

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on June 29, 1989, in Miami, Florida.

APPEARANCES

For Petitioner: Ralph J. Martinez, D.C.

Martinez Building

105 North East 11th Street Homestead, Florida 33030

For Respondent: E. Harper Field, Esquire

Department of Professional Regulation Northwood Centre, Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

STATEMENT OF THE ISSUES

Whether Petitioner correctly answered one question on the proprietary drug portion of the May 1988 Chiropractic examination for which he received no credit, and, if so, the relief to which he is entitled.

PRELIMINARY STATEMENT

Petitioner is a chiropractic physician who elected to take he licensing examination to become certified to administer proprietary drugs as provided in Section 460.406(3), Florida Statutes. Petitioner sat for the proprietary drugs examination in May 1988. After receiving notification that he had received a fail in grade on the examination, he challenged several of the examination questions. Prior to the beginning of the hearing, Petitioner announced that he was abandoning his challenges to all questions except for question 39.

At the final hearing, Petitioner testified on his own behalf and submitted excerpts from an authoritative text as his only exhibit. Respondent called one expert witness. At the request of the Hearing Officer, the examination question

challenged by Petitioner was filed as a confidential exhibit on July 7, 1989. No other testimony or documentary evidence was presented.

The parties were given a period of ten days from July 7, 1989, to file post-hearing submissions. The Petitioner submitted a letter as his only post- hearing submission. Respondent submitted a proposed recommended order containing proposed findings of fact and proposed conclusions of law. The proposed findings of fact contained in the parties' post-hearing submissions will be addressed in the appendix to this recommended order.

Because the examination questions are made confidential by Section 455.230, Florida Statutes, the question challenged by the Petitioner will be discussed in general terms.

FINDINGS OF FACT

1. At all times material hereto, Petitioner was a chiropractic physician licensed to practice in the State of Florida.

   
   

2. In May, 1988, Petitioner sat for the examination give by Respondent to become certified in Florida to administer proprietary drugs.

   
   

3. Petitioner received a failing grade on the examination. Petitioner received a score of 73.3 where a score of 7 was necessary to pass the examination.

   
   

4. At the hearing, Petitioner abandoned his challenges to all questions except his challenge to question 39.

   
   

5. Question 39, a multiple choice question, was centered on how to prevent the occurrence of certain symptoms which often follow the intake of a particular proprietary drug. Petitioner misconstrued the question and responded incorrectly. Had he question centered on the treatment of the symptoms, his response would have been correct. Because the question centered on the prevention of the symptoms, his answer was incorrect.

   
   

6. Respondent gave Petitioner no credit for his answer to question 39 because Petitioner gave the wrong answer to the question.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57, Florida Statutes.

   
   

8. Petitioner has the burden of establishing by a preponderance of the evidence that Respondent's decision to allow no credit for question 39 constitutes arbitrary and capricious action State ex rel. Glasser v. J.M. Pepper, et al., 155 So.2d 383 (Fla. 1st DCA 1963). Petitioner has failed to meet that burden

   
   

9. Section 455.230, Florida Statutes, provides, in pertinent part, as follows:

Notwithstanding any other provision of this chapter, examination questions and answers shall not be subject to discovery,

but may be introduced into evidence and considered only in camera in any administrative proceeding under chapter 120.

... In any subsequent administrative hearing the department shall provide challenged examination questions and answers to the hearing officer. Examination questions and answers so provided at the hearing, which are not invalidated, shall be sealed and not open to public inspection.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Respondent, State of Florida, Department of Professional

Regulation, enter a final order which finds that Petitioner has abandoned his challenges to all questions except for his challenge to question 39 and which denies Petitioner's challenge to question 39. It is further recommended that the examination question filed as an exhibit in this proceeding be sealed.

DONE AND ENTERED in Tallahassee, Leon County, Florida this 9th day of August, 1989.

CLAUDE B. ARRINGTON

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-0906

Petitioner's letter of July 6, 1989, contains no proposed Findings of Fact.

Instead the letter contains Petitioner's argument as to his position.

The proposed Findings of Fact submitted on behalf of Respondent are addressed as follows:

1. Addressed in paragraph 2.

2. Addressed , in part, in paragraph 4. Rejected, in part a being unnecessary to the conclusions reached.

3.-4. Rejected as being subordinate to the findings made in paragraphs 5 -

6.

COPIES FURNISHED:

Ralph J. Martinez, D.C. Martinez Building

105 Northeast 11th Street Homestead, Florida 33030

E. Harper Field, Esquire

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

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

Tallahassee, Florida 32399-0792

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

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Docket for Case No: 89-000906

Orders for Case No: 89-000906