STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALLEN SLEDGE, )

)

Petitioner, )

)

vs. ) Case No. 99-3701

) DEPARTMENT OF HEALTH, BOARD OF ) CLINICAL LABORATORY PERSONNEL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this case on November 5, 1999, in Miami, Florida, before Administrative Law Judge Michael M. Parrish of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Allen Sledge, pro se

7801 Dunham Boulevard, Apartment 3

Miami, Florida 33138

For Respondent: Morton R. Laitner, Esquire

Department of Health

1350 Northwest 14th Street Building 7, Third Floor Miami, Florida 33125

Adam K. Ehrlich, Esquire Department of Health 1309 Winewood Boulevard

Tallahassee, Florida 32399-0700

STATEMENT OF THE ISSUE

This is an examination challenge proceeding in which the Petitioner asserts entitlement to a passing grade on a licensure examination.

PRELIMINARY STATEMENT

Following notification that he had received a failing grade on the hematology technologist examination, the Petitioner went through the examination review process and thereafter initiated this examination challenge proceeding. In his request for a hearing, the Petitioner challenged the scoring of three specific questions. With respect to each challenged question, the Petitioner asserted that the answer he chose was at least as good an answer as the answer choice determined by the Respondent to be the correct answer.1

During prehearing discussions immediately prior to the commencement of the final hearing, the Petitioner discovered that he had incorrectly identified one of the examination questions he sought to challenge. He requested leave to amend his request for hearing to correct the error. There was no objection to the request, and the amendment was allowed.2

At the final hearing in this case, the Petitioner testified on his own behalf, and also offered six exhibits, all of which were received in evidence. The Respondent presented the

testimony of two witnesses, and also offered eleven exhibits, all of which were received in evidence.

At the conclusion of the hearing, the parties were allowed

15 days from the filing of the Transcript within which to file their proposed recommended orders. The transcript was filed with the Division of Administrative Hearings on December 1, 1999. Thereafter, both parties filed timely proposed recommended orders.3 The post-hearing submissions of the parties have been carefully considered during the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner, Allen Sledge, took the hematology technologist licensure examination in March 1999. In due course he was furnished a grade report which advised him that he had failed the exam. The grade report advised him that the minimum passing score was 350, and that he had achieved a score of 338.

2. During the examination review requested by the Petitioner, he was not provided with the same examination booklet he had used during the examination. However, the contents of the examination booklet provided to him during the examination review were identical to the contents of the examination booklet provided to him when he took the examination.

3. During the examination review process, the Petitioner was not allowed to make copies or notes regarding the content of any of the examination materials. Therefore, he had to write his challenges to the examination based on his memory of what he saw during the examination review process, without benefit of the exact language of the questions.

4. The Petitioner's examination review was conducted in accordance with the provisions of statutes and rules that govern post-examination access to examination materials.

5. There is only one version of the hematology technologist examination that was administered in March 1999. All candidates who took the examination on that date were provided with examination booklets that contained identical content.

6. All candidates who took the hematology technologist examination in March 1999, were instructed to select the "best" answer for each question. With regard to the three challenged questions (Questions 35, 37, and 47), the Petitioner did not select the "best" answer to any of the three questions. Rather, the answers chosen by the Petitioner for each of the three challenged questions were incorrect choices.

7. The subject matter of all of the challenged questions is appropriate for a hematology technologist licensure

   examination. All of the questions test for knowledge that should be known by a hematology technologist.

   CONCLUSIONS OF LAW

   
   

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

9. In a case of this nature, the Petitioner has the burden of establishing by a preponderance of the evidence that his failing grade was the product of arbitrary or otherwise improper or erroneous grading. See Harac v. Department of Business and Professional Regulation, Board of Architecture, 484 So. 2d 1333 (Fla. 3d DCA 1986); Florida Department of Health and

Rehabilitative Services v. Career Service Commission, 289 So. 2d 412, 414 (Fla. 4th DCA 1974). The Petitioner has failed to meet this burden of proof. To the contrary, the greater weight of the evidence in this case is to the effect that there was nothing arbitrary, improper, or erroneous in the grading of the three challenged questions.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED

That a final order be issued dismissing the Petitioner's challenge to the examination, and concluding that the Petitioner failed the subject examination.

DONE AND ENTERED this 18th day of January, 2000, in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 2000.

ENDNOTES

1/ At hearing, the Petitioner also contended that one of the examination questions was an inappropriate question, because it inquired about matters that are not within the scope of the routine duties of a hematology technologist.

2/ In his letter requesting a hearing, the Petitioner listed questions 37, 42, and 47 as the examination questions he sought to challenge. The Petitioner actually sought to challenge questions 35, 37, and 47.

3/ The Petitioner also filed a timely supplement to his proposed recommended order.

COPIES FURNISHED:

Eric G. Walker, Executive Director Board of Clinical Laboratory Personnel Department of Health

1940 North Monroe Street Tallahassee, Florida 32399-0750

Angela T. Hall, Agency Clerk Department of Health

2020 Capital Circle, Southeast Bin A02

Tallahassee, Florida 32399-1703

Allen Sledge

7801 Dunham Boulevard

Apartment 3

Miami, Florida 33138

Morton R. Laitner, Esquire Department of Health

1350 Northwest 14th Street Building 7, Third Floor Miami, Florida 33125

Adam K. Ehrlich, Esquire Department of Health 1309 Winewood Boulevard

Tallahassee, Florida 32399-0700

Pete Peterson, General Counsel Department of Health

2020 Capital Circle, Southeast Bin A02

Tallahassee, Florida 32399-1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of 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: 99-003701

Orders for Case No: 99-003701