STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MATTHEW R. NIRSCHL,

Petitioner,

vs.

DEPARTMENT OF HEALTH,

Respondent.

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) Case No. 03-3826

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RECOMMENDED ORDER

A formal hearing was conducted in this case on December 16, 2003, in Daytona Beach, Florida, by Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Matthew R. Nirschl

1348 Continental Drive

Daytona, Florida 32117

For Respondent: Cassandra Pasley, Esquire

Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703

STATEMENT OF THE ISSUE

The issue is whether Petitioner received a passing score on the physical diagnosis portion of the May 2003 chiropractic licensure examination.

PRELIMINARY STATEMENT

In May 2003, Petitioner Matthew R. Nirschl (Petitioner) took the examination for licensure as a chiropractic physician. On or about June 30, 2003, Respondent Department of Health (Respondent) advised Petitioner that he failed the physical diagnosis portion of the examination.

On or about July 24, 2003, Petitioner requested a post- examination review of the examination. Respondent scheduled the review for August 7, 2003. After the review, Petitioner appealed his failing score on the physical diagnosis section of the examination.

By letter dated September 25, 2003, Respondent advised Petitioner that the appeal was denied. According to the letter and the interoffice memorandum attached thereto, Respondent would not agree to change Petitioner's failing grade.

In a letter dated October 9, 2003, Petitioner requested an administrative hearing to challenge Respondent's determination that he failed to demonstrate a level of competency sufficient for licensure. On October 16, 2003, Respondent referred this request to the Division of Administrative Hearings.

A Notice of Hearing dated October 30, 2003, scheduled the case for hearing on December 16, 2003.

During the hearing, Petitioner testified on his own behalf.

Petitioner did not offer any exhibits for admission into evidence.

Respondent presented the testimony of two witnesses and offered ten exhibits that were admitted into evidence. Due to the confidential nature of the examination material, all exhibits are sealed in the record. See § 456.014(2), Fla. Stat. (2003).

An unredacted copy of the transcript was filed on January 20, 2004. Respondent filed a redacted copy of the

transcript on January 22, 2004. Due to the confidential nature of the examination material discussed during the proceeding, the unredacted copy of the transcript is sealed pursuant to

Section 456.014(2), Florida Statutes (2003).

Respondent filed its Proposed Recommended Order on February 4, 2004. Petitioner filed a Proposed Recommended Order on February 9, 2004. Due to the confidential nature of the examination material discussed in the proposed orders, they are hereby sealed. See § 456.014(2), Fla. Stat. (2003).

The Findings of Fact in this Recommended Order also discuss confidential examination material. Accordingly, the Findings of Fact are hereby sealed. See § 456.014(2), Fla. Stat. (2003).

CONCLUSIONS OF LAW

1. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2003).

2. Section 456.017, Florida Statutes (2003), authorizes Respondent to administer licensure examinations for chiropractors. Pursuant to Section 460.406, Florida Statutes (2003), any person desiring to practice chiropractic medicine in Florida is required to pass the examination.

3. As an applicant, Petitioner has the burden of proving his material allegations by a preponderance of the evidence. Department of Transportation v. J. W. C. Company, Inc.,

   396 So. 2d 778 (Fla. 1st DCA 1981). Petitioner must show that the scoring was arbitrary and capricious or constitutes an abuse of discretion. Espinoza v. Department of Business and Professional Regulation, 739 So. 2d 1250 (Fla. 3d DCA 1999); State ex rel. Glasser v. J.M. Pepper, 155 So. 2d 383 (Fla. 1st DCA 1963); and Topp v. Board of Electrical Examiners,

   101 So. 2d 583 (Fla. 1st DCA 1958). Petitioner has not met his burden.

4. Petitioner incorrectly named two tests/procedures in Task 3 that were not required or allowed. Petitioner named two

   incorrect ranges of motion in Task 19. Respondent properly awarded Petitioner no points for these questions.

5. For Task 21, Petitioner incorrectly demonstrated the strength of a muscle. Respondent correctly determined that Petitioner was not entitled to any points for his demonstration.

6. In grading Petitioner's examination, Respondent did not act arbitrarily or capriciously or abuse its discretion in any other way. The greater weight of the evidence indicates that Petitioner's score on the physical diagnosis portion of the examination should not be changed.

RECOMMENDATION

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

RECOMMENDED:

That Respondent enter a final order determining that Petitioner earned a score of 74 on the May 2003 Chiropractic Licensure Examination.

DONE AND ENTERED this 16th day of February, 2004, in Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

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 16th day of February, 2004.

COPIES FURNISHED:

Matthew R. Nirschl 1348 Continental Drive

Daytona, Florida 32117

Cassandra Pasley, Esquire Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703

R. Samuel Power, Agency Clerk Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703

William W. Large, General Counsel Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703

Joe Baker, Jr., Executive Director Board of Chiropractic Medicine Department of Health

4052 Bald Cypress Way, Bin C07 Tallahassee, Florida 32399-1703

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: 03-003826

Orders for Case No: 03-003826