STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SYLVIE SALTER, )

)

Petitioner, )

)

vs. ) CASE NO. 94-5213

) DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, ) BOARD OF MASSAGE, )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing was held in Largo, Florida, on February 23, 1995, 1995, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Sylvie Salter, pro se

2944 West Bay Drive, Suite 207 Belleair Bluffs, Florida 32399-0750

For Respondent: William M. Woodyard

Assistant General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0750 STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner is entitled to a passing grade on the written massage examination that she took in March 1994.

PRELIMINARY STATEMENT

By letter dated August 24, 1994, Petitioner challenged the grading of the written part of her massage examination, which she had taken in March 1994. At the hearing, she identified four questions as the subject of her challenge.

At the hearing, Petitioner called one witness and offered into evidence three exhibits. Respondent called two witnesses and offered into evidence four exhibits. All exhibits were admitted.

Neither party ordered a transcript. All of Respondent's proposed findings are adopted or adopted in substance.

FINDINGS OF FACT

1. Petitioner took the March 1994 massage examination in order to become a licensed massage therapist. She scored a 69. She needed 70 to pass. Each question was worth one point.

   
   

2. Prior to the hearing, Petitioner challenged 15 of the questions. At the beginning of the hearing, she reduced her challenge to five questions, later reducing it, during the hearing, to four questions.

   
   

3. Question three states: "A physiological function which cause edema is a/an."

   
   

4. The answer for which Petitioner gave credit was "D. Obstruction in lymphatic flow."

   
   

5. Respondent answered "C. Increase in capillary colloidal osmotic pressure."

   
   

6. In Healing Massage Techniques: Holistic, Classic, and Emerging Methods by Frances M. Tappan (Appleton & Lange 2d edition 1988), the text identifies at page 30 four physiologic mechanisms favoring edema, including "decreased capillary colloidal osmotic pressure" and "obstruction of lymphatic flow."

   
   

7. Petitioner failed to prove that an increase in capillary colloidal osmotic pressure could also predispose someone to edema. She did not understand the meaning of "colloidal" and evidently did not understand the area well enough to challenge the text.

   
   

8. Question 47 asks: "For clients who have difficulty relaxing, which strokes can be used on the entire muscle or limb and to encourage relaxation?"

   
   

9. Respondent gave credit for "D. Shaking vibration."

   
   

10. Petitioner answered "B. Cupping tapotement."

    
    

11. In Healing Massage Techniques: A Study of Eastern and Western Methods by Frances M. Tappan (Reston Publishing Co. 1980), the text mentions at page 66 that vibration is often used for a soothing effect. As demonstrated by one of Respondent's witnesses, and confirmed in the text, the vibration is very gentle. Tapotement is used for stimulation, not soothing.

    
    

12. Question 58 states: "To loosen superficial scar tissue, you should use".

    
    

13. Respondent gave credit for answer "A. Deep circular friction movements."

    
    

14. Petitioner answered "B. Light effleurage."

    
    

15. In Manual of Hydrotherapy and Massage (Pacific Press Publishing Association 1964), the text states that "[f]riction is a deep circular movement." Petitioner testified that in Sweden, where she learned massage, the stroke is called "effleurage."

The problem for Petitioner is that her answer is "light" effleurage.

Regardless of the name of the stroke, the touch required for loosening up scar tissue is not light. 16. Question 86 states: "A license to operate a massage establishment can be transferred to another location."

1. Respondent gave credit for the answer, "C. Under NO circumstances."

   
   

2. Petitioner answered "D. When a massage therapist moves."

   
   

3. As provided by Section 480.043(7), Florida Statutes, a license for operation of a massage establishment, as opposed to the license of a massage therapist, may be not transferred to a different location.

   
   

4. The challenged questions and credited answers are reliable and valid. They are supported by good authority. The questions present enough information for the student to supply the correct answer. The challenged questions and credited answers are not arbitrary, capricious, or devoid of logic.

CONCLUSIONS OF LAW

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

   
   

2. Respondent is responsible for administering the examination for certification as a massage therapist. Section 480.041, Florida Statutes.

   
   

3. The requirement imposed upon all examinations for licensure is that they "adequately and reliably measure an applicant's ability to practice the profession regulated by" Respondent. Section 455.217(1)(a), Florida Statutes. A question or portion of a test may be rendered invalid if the question or test instructions are "substantially insufficient and misleading." Alvarez v. Department of Professional Regulation, 458 So. 2d 808, 811 (Fla. 1st DCA 1984).

   
   

4. Petitioner has the burden of proof. Department of Transportation v. J.

   W. C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

   
   

5. Petitioner has failed to prove that Respondent misgraded any of the four challenged questions.

RECOMMENDATION

It is hereby

RECOMMENDED that the Board of Massage enter a final order dismissing Petitioner's exam challenge.

ENTERED on March 24, 1995, in Tallahassee, Florida.

ROBERT E. MEALE

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 on March 24, 1995.

COPIES FURNISHED:

Sylvie Salter, pro so

2944 West Bay Drive, Suite 207 Belleair Bluffs, FL 32399-0750

William M. Woodyard Assistant General Counsel Department of Business and

Professional Regulation 1940 N. Monroe St.

Tallahassee, FL 32399-0750

Linda Goodgame, General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 94-005213

Orders for Case No: 94-005213