STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CAROLINE T. DAVIS, )

)

Petitioner, )

)

v. ) CASE NO. 90-1021

) DEPARTMENT OF PROFESSIONAL REGULATION, ) BOARD OF HEARING AID SPECIALISTS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on July 16, 1990, in Panama City, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: Caroline T. Davis, Pro Se

2401 West 15th Street Panama City, FL 32401

For Respondent: Vytas J. Urba

Staff Attorney

Department of Professional Regulation

1940 North Monroe Street Tallahassee, FL 32399-0792

STATEMENT OF ISSUES

The issue is whether the Petitioner, Caroline T. Davis, is entitled to licensure as a hearing aid specialist by virtue of a passing grade on the September, 1989, examination.

PRELIMINARY STATEMENT

Ms. Davis presented her own testimony and that of Ella Hall. Petitioner's Exhibits 1-8 were admitted in evidence. The Respondent, Department of Professional Regulation, (DPR) presented the testimony of Everett Scroggie, Jr., and Ella Hall. Respondent's Exhibit 1 was admitted in evidence.

The transcript of the proceedings was filed on August 10, 1990. The parties filed their proposed findings of fact and conclusions of law on August 20, 1990. All proposed findings of fact and conclusions of law have been considered. A specific ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.

FINDINGS OF FACT

1. Caroline T. Davis was an applicant for licensure as a hearing aid specialist and took the September, 1989, examination.

   
   

2. Ms. Davis received an overall score of 71%. A score of 75% is required to pass the examination.

   
   

3. As a result of sanctions imposed for failure to produce, Ms. Davis was awarded 2 points. (See Order Imposing Sanctions entered July 24, 1990.) As a result, Ms. Davis has a score of 73% and needs only 2 points to pass the examination.

   
   

4. While she challenged numerous portions of the examination, at the hearing Ms. Davis raised specific challenges only to the scoring on Procedures

   7-9, 11, and 13 of the earmold impressions portion of the practical examination.

   
   

5. Procedure 7 relates to the examination of the ear after removal of the impression. The candidate instructions given prior to the examination advise the candidate to "[d]emonstrate all procedures followed prior, during, and after making an impression." The tape of the examination makes it clear that Ms. Davis stated that she would go back and examine the ear after removing the earmold. However, Ms. Davis did not demonstrate the activity of examining the ear after removing the impression. Ms. Davis did not satisfy the requirements for credit on Procedure 7.

   
   

6. Procedure 8 relates to the execution of a correct order form. The instructions required the candidate to fill out an order form for an earmold. Ms. Davis incorrectly filled out the order form for an in-the-ear hearing aid. While the rest of the form was correctly executed, the one error is sufficient to deny credit for a correct answer on Procedure 8.

   
   

7. Procedure 9 relates to an explanation by the candidate of how to put on a hearing aid. Ms. Davis did not perform this task. She simply stated that she would explain or demonstrate the way to put on a hearing aid. She did not satisfy the requirements for credit on Procedure 9.

   
   

8. Procedure 11 requires the candidate to give the functions of at least three parts of a hearing aid. The candidate instructions advise the candidate to tell the client "the function of the parts of the hearing aid that are important for client use." Ms. Davis explained the functions of two parts: the battery and its proper insertion and the volume control. She named three other parts, but she failed to explain the functions of these parts. Procedure 11 requires more than the simple naming of parts of a hearing aid. Again Ms. Davis failed to perform the required tasks for credit on Procedure 11.

   
   

9. Procedure 13 requires the candidate to tell the client about the warranty on the hearing aid. Ms. Davis did state that she would tell the client about the warranty, but she did not do so during the examination. She argues that she should not have to state the warranty information because that would be provided in a written form to the client when the aid is delivered. The candidate instructions make it clear that the candidate is to select one of the aids provided at the examination, is to use that aid in performing various procedures, and is to perform the procedures as if that aid were being delivered to the client. The candidate is required to state the warranty information as to the hearing aid he selected. The very terms of the examination require that

   the candidate tell about the warranty information, not state that she would do so in a real situation. Ms. Davis did not tell about the warranty and is not entitled to credit for Procedure 13.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction of the parties to and subject matter of these proceedings. Section 120.57(1), Florida Statutes.

    
    

11. The candidate in an examination challenge has the burden of proving by a preponderance of the evidence that she is entitled to additional credit for specific questions on the examination. Ms. Davis failed to carry this burden of proof. The competent, substantial evidence does not show that Ms. Davis is entitled to additional credit for any of the challenged items on the examination.

    
    

12. Ms. Davis has also alleged that DPR was arbitrary or capricious when grading her examination. In fact, the grades given were supported by the evidence presented. There is no competent, substantial evidence to show that DPR acted without logic or reason in any of the grading activities associated with Ms. Davis' examination.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation enter a Final

Order dismissing the examination challenge of Caroline T. Davis to the

September, 1989, examination for licensure as a hearing aid specialist.

DONE and ENTERED this 4th day of September, 1990, in Tallahassee, Florida.

DIANE K. KIESLING

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 4th day of September, 1990.

APPENDIX TO THE RECOMMENDED ORDER

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case.

Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Caroline T. Davis

1. Proposed findings of fact 1, 2, 4, 5, 14, and 16 are unsupported by the competent, substantial evidence.

   
   

2. Proposed findings of fact 3, 6-10, 15, and 17-21 are irrelevant.

   
   

3. Proposed findings of fact 11-13 are subordinate to the facts actually found in this Recommended Order.

Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Professional Regulation

1. Proposed findings of fact 1 and 4-9 are subordinate to the facts actually found in this Recommended Order.

   
   

2. Proposed findings of fact 2, 3, and 10 are unnecessary or irrelevant.

COPIES FURNISHED:

See Next Page Caroline T. Davis 2401 West 15th Street

Panama City, FL 32401

Vytas J. Urba Staff Attorney

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

Kenneth E. Easley General Counsel

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

LouElla Cook Executive Director

Board of Hearing Aid Specialists Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

Docket for Case No: 90-001021

Orders for Case No: 90-001021