STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

BARBARA K. LURIE, )

)

Petitioner, )

)

vs. ) CASE NO. 89-5500

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, MARRIAGE & )

FAMILY THERAPISTS, )

)

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 January 9, 1990, in Miami, Florida.

APPEARANCES

For Petitioner: Ira C. Hatch, Jr., Esquire

Houston, Shahady & Hatch

100 Northeast Third Avenue Suite 900

Fort Lauderdale, Florida 33301

For Respondent: E. Harper Field, Esquire

Deputy General Counsel

Department of Professional Regulation Northwood Centre, Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

STATEMENT OF THE ISSUES

Whether the examination for licensure as a marriage and family therapist taken by Petitioner was correctly scored by Respondent.

PRELIMINARY STATEMENT

Petitioner sat for the marriage and family therapist licensure examination on April 19, 1989. After receiving notification that she failed the examination, Petitioner challenged the Respondent's grading of several questions. Petitioner abandoned all challenges prior to the hearing except for her challenge to Question 39.

At the final hearing, Petitioner testified on her own behalf and called Dr.

Jean C. Klein as her only other witness. Respondent called as its only witness Dr. Larry Barlow. Both Dr. Klein and Dr. Barlow are practicing marriage and

family therapists. The examination questions were accepted into evidence and labeled Hearing Officer Exhibit 1. Respondent offered one exhibit, the resume of Dr. Larry Barlow, which was accepted into evidence. No other documentary evidence was offered by the parties.

A transcript of the proceedings has been filed. Specific rulings on the parties' proposed findings of fact may be found 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 and Hearing Officer Exhibit 1 will be treated as a confidential exhibit.

FINDINGS OF FACT

1. Respondent is the state agency charged with the duty of regulating marriage and family therapists in the State of Florida. An applicant for licensure by examination must pass the examination administered by Respondent as a prerequisite to licensure in the State of Florida as a marriage and family therapist. Section 491.005(2)(d), Florida Statutes.

   
   

2. Petitioner sat for the marriage and family therapist licensure examination on April 19, 1989.

   
   

3. Petitioner did not pass the examination. Had Petitioner been awarded credit for her answer to the challenged question, she would have passed the examination.

   
   

4. Petitioner timely challenged the grading of her answer to several examination questions for which she received no credit. Prior to the beginning of the formal hearing, Petitioner abandoned her challenge to the grading of her answer to all questions except Question 39.

   
   

5. Prior to taking the examination, Petitioner was given a reading list to assist her in preparation for the examination.

   
   

6. Question 39 is an objective, multiple choice question which contains four choices as possible answers. Question 39 required the candidate to select from the four available choices the choice that describes a particular type of family therapy. Petitioner contends that two of the four choices correctly answer Question 39. Petitioner asserts that she selected one of the two correct choices and that she should have been given credit for her choice. Respondent contends that there is only one correct choice in answer to Question 39 and that Petitioner failed to select the correct choice.

   
   

7. The term used in Question 39 to describe the type of family therapy that is the subject of the question is a term of art that has a specific meaning in the practice of family therapy. Choice C reflects this specific meaning of the term as it is used as a term of art in the practice of family therapy. The term also has a broader, more generic meaning in the practice of psychoanalysis. Choice B reflects this broader, more generic meaning of the term as the term is used in the practice psychoanalysis.

   
   

8. Petitioner maintains that either choice B or Choice C correctly answer Question 39. Respondent maintains that choice C is the only choice that correctly answers the question.

9. Petitioner, a practicing psychoanalyst in New York with extensive education and experience in the field of psychoanalysis, selected Choice B, which contains the broader, more generic meaning of the term as the term is used in the field of psychoanalysis.

   
   

10. Question 39 is not ambiguous. The question clearly requires the candidate to apply the subject term as the term is used in the practice of family therapy. Question 39 was not directed toward the use of the subject terms in other disciplines. Accordingly, Petitioner's response to the question, Choice B, was incorrect. The only correct response to Question 39 was Choice C.

    
    

11. The question contained sufficient information to enable the candidate to correctly answer the problem. The correct answer to the problem was available to Petitioner in the reference material she was advised to use in preparation for the examination. Respondent gave Petitioner no credit for her answer to Question 39 because Petitioner gave the wrong answer to the question.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes, Rule 21-11.012, Florida Administrative Code.

    
    

13. Section 491.005(2)(d), Florida Statutes, provides that applicants for licensure in Florida by examination as a marriage and family therapist must pass an examination provided by Respondent.

    
    

14. Petitioner has the burden of establishing by a preponderance of the evidence that Respondent's decision to allow no credit for her answers to the challenged questions 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.

    
    

15. 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 pubic 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 abandoned her challenges to all questions except Question 39 and which denies Petitioner's challenges to Question 39. It is further recommended that the examination question filed as exhibits in this proceeding be sealed.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of February, 1990.

CLAUDE B. ARRINGTON

Hearing Officer

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 1990.

APPENDIX TO RECOMMENDED ORDER IN CASE No. 89-5500

The following rulings are made on the proposed findings of fact submitted on behalf of Petitioner.

1. The proposed findings of fact in paragraph 1 are adopted in material part by paragraphs 2, 3, and 7 of the Recommended Order.

2. The proposed findings of fact in paragraph 2 are rejected because of the need to keep the examination confidential, if possible. The examination question may be found in Hearings Officer Exhibit 1.

3. The proposed findings of fact in paragraph 3 are adopted in material part by paragraph 7 of the Recommended Order.

4. - 7. The proposed findings of fact in paragraphs 4 - 7 are rejected as being subordinate to the findings made.

8. - 11. The proposed findings of paragraphs 8 - 11 are rejected as being unnecessary to the findings made and the conclusions reached because the subject question limits the use of the term to the practice of family therapy.

1. The proposed findings of fact in paragraph 12 are rejected as being contrary to the findings made.

2. The proposed findings of fact in paragraph 13 are adopted in material part by paragraph 7 of the Recommended Order.

3. The proposed findings of fact in paragraph 14 are rejected as being legal argument.

4. - 16. The proposed findings of fact in paragraphs 15 and 16 are rejected as contrary to the findings made.

The following rulings are made on the proposed findings of fact submitted on behalf of Respondent.

1. The proposed findings of fact in paragraph 1 are adopted in material part by paragraphs 2, 3, and 7 of the Recommended Order.

2. - 4. The proposed findings of fact in paragraphs 2 - 4 are adopted in material part by paragraphs 3 and 4 of the Recommended Order.

5. - 6. The proposed findings of fact in paragraphs 5 and 6 are rejected as being subordinate to the findings made.

1. The proposed findings of fact in paragraph 7 are adopted in material part by paragraphs 6 - 10 of the Recommended Order.

2. - 9. The proposed findings of fact in paragraphs 8 and 9 are rejected as being recitation of testimony and as being subordinate to the findings made.

1. The proposed findings of fact in paragraph 10 are rejected because of the need to keep the examination confidential, if possible. The examination question may be found in Hearings Officer Exhibit 1.

2. The proposed findings of fact in paragraph 11 are rejected as being recitation of testimony and as being subordinate to the findings made.

COPIES FURNISHED:

Ira C. Hatch, Jr., Esquire Houston, Shahady & Hatch

100 Northeast Third Avenue Suite 900

Fort Lauderdale, Florida 33301

E. Harper Field, Esquire Deputy General Counsel

Department of Professional Regulation Northwood Centre, Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

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

Tallahassee, Florida 32399-0792

Linda Biedermann Executive Director

Department of Professional Regulation 1940 North Monroe Street

Suite 60

Tallahassee, Florida 32399-0792

Docket for Case No: 89-005500

Orders for Case No: 89-005500