Findings Of Fact Lucien A. Jonet took the practical examination administered by the Board of Cosmetology for licensure on February 17, 1981. Jonet obtained a score of 71.5 percent on this examination in which 75 percent is a passing score. Jonet lost three points for failure to properly drape his model for Chemical Straightening, Bleaching and Shampooing. The model used by Jonet in the examination stated she moved, loosened and removed the drape at times because of the heat and her personal discomfort. When Jonet was present, he redraped the model; however, as required by the examination procedure, Jonet was not present when the model was examined. The Board's instructions do not advise the models or the examinees that the models should not touch their drapes or towels. The Board's confidential instructions to examiners provide that points be deducted for failure to properly drape the model. At least one of the examiners testified she would take points off for this performance criteria if the drape were loose or the towel off when she checked the model. Jonet's model had hair that was of minimal length, and Jonet stated her hair was so uneven that it could not be cut to a blended, even length. He gave the model a styled, uneven shag cut. The Board's confidential instructions to the examiners require that examinees' performances be graded on an even, blended haircut with even edges and necklines. Although the instructions to examinees advise that models should have hair of sufficient length that after an inch has been cut from the hair it may be curled, there are no specific instructions that they will be graded on a blended, even cut. The Board's only instructions to examinees on haircutting at the examination are as follows from the Hearing Officer's Exhibit 1: "We recommend a basic haircut. An extremely short style cut would interfere with the performance of molding and pin curl portion of your exam. You may use the hair cutting implements of your choice. Any hair falling on the floor must be cleaned up before grading. Are there any questions?" The examiners also stated that the examinees should report problems with their models' hair that would affect the examinees performances, and that when such problems existed they would not deduct points. However, the instructions to the examinees do not contain this caveat. Jonet lost eight points on haircutting: two points for gaps left behind his model's ears, two points twice for an uneven neckline, and two points for uneven blending of the hair. One of the examiners stated that the last portion of the curriculum for most Florida cosmetology schools is spent in simulation of the Board's examination, and that these schools are well versed in the specific criteria which the Board uses in assessing performance. Jonet had sought a reexamination but was denied because he had taken the first examination with 600 hours of evaluated credit, and the Board's rules require a person with only 600 hours of school who fails the examination to finish another 600 hours. The Board denied Jonet the opportunity to seek an added 600 hours of evaluated credit. Jonet has more than 40 years' experience in cosmetology, is a graduate of a European program, was licensed in Illinois prior to an examination being required, and held an Illinois license for 23 years.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that Lucien A. Jonet be permitted to take the Board of Cosmetology's examination again, and that the instructions for the examination be amended to fairly advise examinees of the examination's actual requirements and instruct the models not to touch or interfere with their hair, drapes or towels. DONE and ORDERED this 14th day of January, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1982. COPIES FURNISHED: Mr. Lucien A. Jonet 12500 Ulmerton Road, #16 Largo, Florida 33540 Drucilla E. Bell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Samuel Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue This order addresses three cases consolidated for hearing. The first case chronologically is DOAH Case No. 00- 1964, which arises from the pre-licensure inspection initiated as a result of Respondent's application for a certification to provide limited nursing services, and seeks to levy fines for repeated violations originally noted in the biennial inspection of September 10, 1999. The second case chronologically is DOAH Case No. 00-1963, which arises from the re-inspection of the pre-licensure inspection performed on February 21, 2000, and relates to fines for repeated violations of the rules. The third case chronologically is DOAH Case No. 00-1965, which is related to issuance of the Department’s denial of certification to provided limited nursing services; however, it is based upon the same factual predicate as Case No. 00-1963. The issues in each of the cases are as follows: Case No. 00-1964: Should fines be levied against the Respondent as the result of an inspection which (1) was conducted without notice contrary to the letter concerning the inspection from the Department, and (2) in the absence of specific proof that the specific violation was repeated. Case No. 00-1963: Should fines be levied against the Respondent for failure to correct violations identified in an inspection that was not noticed contrary to the information provided to the Respondent, and when the Respondent was not rendering any services to which the violation applied. Case No. 00-1965: Should Respondent be denied a certification to provide limited nursing services based upon the violations discovered in the inspections of January 18, 2000 and February 21, 2000.
Findings Of Fact General Facts The Department is the agency charged with the inspection, regulation, and licensure of adult living facilities. The Respondent is an adult living facility owned and operated by Christal L. Caso. On November 11, 1999, Mr. Robert Cunningham conducted a biennial inspection of Respondent’s adult living facility (ALF). He identified a number of deficiencies that were written up in a detailed inspection report. Mr. Cunningham identified copies of his report which were a part of the Petitioner's Bound Exhibits in Case Nos. 00-1964 and 00-1963. A re-inspection was conducted in December of 1999, and all of the deficiencies noted had been corrected. The Administrative Complaint in Case No. 00-1964 alleges that on January 18, 2000, certain deficiencies found during Mr. Cummingham’s inspection on November 11, 1999, were repeated. His inspection report and its findings will be referenced and discussed in conjunction with the consideration of the report for January 18, 2000; however, there are no issues involved directly with Mr. Cunningham’s inspection or his report in any of the three pending cases. The Respondent applied for an additional certification to provide limited nursing services (LNS) at its facility. This application was duly processed and the Respondent was notified by letter, dated January 13, 2000, from the Department’s Tallahassee office that the facility must notify the Department within 21 days that it was ready for an operational survey (inspection), and that an announced inspection would be scheduled within several weeks. On January 18, 2000, Ms. Eleanor McKinnon, an inspector with the Department, arrived unannounced at the facility to conduct the pre-licensure inspection. Ms. Caso was not present at the facility at the time Ms. McKinnon arrived. When Ms. Caso arrived at the ALF, she advised Ms. McKinnon that she was not prepared and her inspection was inconsistent with the information Caso had received. Ms. McKinnon continued the inspection citing a policy that their inspections were unannounced. The letter Ms. Caso received from the Department’s Tallahassee office was termed, at hearing, inconsistent with agency procedure by personnel attached to the local office. It was clear Ms. Caso received and relied upon the information contained in the letter, and she had no reason to believe that it was not an accurate statement of how inspections would proceed. Ms. McKinnon prepared a detailed inspection report that was identified as an exhibit in all of the bound volumes. She did not have a clear recollection of the specific findings at the time of the hearing. The inspection reports identify specific areas of operations by alphanumeric designators termed "Tags." These tags relate to a specific area of concern in an inspection such as storage of drugs, medical records, or safety. The tags are listed in a separate column on the inspection reports, and specific violations will be identified and discussed in this order by reference to specific tags as they were at hearing. Licensure Inspection, January 18, 2000 Findings of Fact Specific to Case No. 00-1964 Although the Department's letter of January 13, 2000, said that the Respondent should notify the Department when it was ready for inspection, the Department has the right to inspect at any time for compliance with the rules. Regarding Tag A401, the first violation alleged to have been repeated, the inspection report for November states that "Three of five residents did not have a Health Assessment on file." The January inspection report states, "Review of two resident records revealed that one of the two residents had no health assessment on their medical record." Ms. Caso testified regarding individual records. These records she kept at her office at her house off the ALF’s premises. She was willing to retrieve these records; however, the inspector maintained that they were required to be maintained on site. Regarding the second alleged repeated violation, the November inspection report states, "Medications for Resident No. 3 which were discontinued in August were still in the centrally stored medicine closet." The January inspection report stated at Tag A612, "Tour of the medication room on the day of the survey revealed that medications from residents who the administrator said had been gone for over two years were still in the medication closet." This is alleged in the Administrative Complaint to have violated Rule 58A- 5.0182(6)(d), Florida Administrative Code. The Petitioner included in its exhibit a copy of the cited rule. Regarding the third alleged repeated violation, the January report states that over-the-counter medication was maintained in the medicine storage area without the name of the individual for whom it was prescribed being on it. This was alleged to be a violation of Rule 58A-5.0182(6)(f), Florida Administrative Code. A review of the current rules indicates that Rule 58A-5.0182(6)(d) and (f) do not address the substance of the alleged violation, and that the last amendment to the rule occurred in October 17, 1999. This provision had been repealed before the first inspection. Conclusions of Law for Case No. 00-1964 The Division of Administrative Hearings has jurisdiction over the subject matter and parties in this and the other consolidated cases. This case seeks to fine the Respondent for violations allegedly violated in the original inspection of November 11, 1999, and repeated on the inspection of January 18, 2000. The Department can conduct a compliance inspection at any time. However, to consider such an inspection a pre- licensing inspection is contrary to the letter regarding the inspection procedures sent to the Respondent by the Department’s Tallahassee office. I conclude that, although findings may be considered for general enforcement purposes and fines potentially levied for violations, they cannot be considered a pre-licensing inspection. The practical effect of this is that a general violation applicable to an ALF can be cited and considered; however, fines cannot be levied for those matters related to LNS because the Respondent was not licensed or engaged in rendering LNS. In addition, the Respondent is not subject for fines for violation of those portions of the rules applicable only to providing LNS because the Respondent was entitled to request an announced inspection pursuant to the Department’s letter. The Administrative Complaint of Case No. 00-1964 cites Rule 58A-5.0191(3)(a), Florida Administrative Code, as having been violated presumably a reference to Tag A401 relating to admission standards. Specifically, the cited fault related to health assessments. Rule 58A-5.0191(2)(a), Florida Administrative Code, provides as follows: (2) HEALTH ASSESSMENT. Within 60 days prior to the residents admission to a facility but no later than 30 days after admission, the individual shall be examined by a physician or advanced registered nurse practitioner who shall provide the administrator with a medical examination report, or a copy of the report, which addresses the following: The physical and mental status of the resident, including the identification of any health-related problems and functional limitations; An evaluation of whether the individual will require supervision or assistance with the activities of daily living; Any nursing or therapy services required by the individual; Any special diet required by the individual; A list of current medications prescribed, and whether the individual will require any assistance with the administration of medication; Whether the individual has signs or symptoms of a communicable disease which is likely to be transmitted to other residents or staff; A statement that in the opinion of the examining physician or ARNP, on the day the examination is conducted, the individual’s needs can be met in an assisted living facility; and The date of the examination, and the name, signature, address, phone number, and license number of the examining physician or ARNP. The medical examination may be conducted by a currently licensed physician or ARNP from another state. The Administrator testified that health assessments were maintained for the residents, but were maintained at her office in her home. The inspector took the position that these assessments had to be maintained on-site; however, there is nothing in the rule upon which to base that conclusion. The rule provides that the physician or advanced registered nurse practitioner will provide the administrator with a copy of the assessment. The inspector did not permit the administrator time to retrieve the assessment for her inspection. In the absence of an inspection of the records, it cannot be determined whether the 30 days' grace period was applicable. I conclude that a health assessment does not have to be kept on site pursuant to Rule 58A-5.0181(2)(b), Florida Administrative Code. The Inspector should have given the Respondent time to retrieve the records. Then a determination could have been made whether the appropriate information was contained in the records. There is no violation and no basis for levying a fine. The alleged violations of Rule 58-5.182(6)(d) and (f), Florida Administrative Code, cannot be a basis for fines or denial of the license because the rule was repealed before the biennial inspection, the pre-licensure inspection, or the re-inspection. Findings of Fact Case Nos. 00-1963 and 00-1965 Ms. McKinnon conducted a re-inspection of the ALF on February 21, 2000. This inspection was the basis for levying fines for alleged repeated violations, and for denying licensure. Therefore, these factual allegations will be discussed together. Ms. McKinnon’s report of inspection is contained in the bound volumes pertaining to Case Nos. 00-1963 and 00-1965. The first tag number is N201, and the Rule alleged to have been violated is Rule 58A-5.031(2)(d), Florida Administrative Code. In the inspection report of January 18, 2000, the inspector made the following observation: "Review of the facility records and interview with the administrator revealed that no log had been prepared for the admission residents to receive limited nursing services." At the time of the inspection, the facility was not licensed to provide limited nursing services. Such services were not being rendered. This log is nothing more than a piece of paper upon which a chronological record of services is kept. This record is not required to be kept until services are rendered under the provisions of the rule. The next tag number of the next violation is N205 on the inspection report of January 18, 2000. Tag N205 alleges violation of Rule 58A-5.0131(2)(ff), Florida administrative Code, because, "Review of the facility records and interview with the administrator revealed that there was no documented information on what services would be provided under limited nursing or who would provide the services." The next tag at issue is N302. It cites a violation of Rule 58A-5.031(2)(a), Florida Administrative Code, and states, Interview with the administrator and review of facility documentation revealed that no provision had been made to have currently licensed nurse in the facility to perform limited nursing services, nor was there a contract with a RN or MD to supervise the services provided. Again, the rule cited in the complaint is wrong. Rule 58A- 5.031(2)(d), provides that the facility must have a contract for nursing services. It was explained at hearing that there was no contract present for a nurse to supervise Ms. Caso, and no contract with Ms. Caso during the first inspection. Ms. Caso testified regarding this. She did not originally believe she was required to have a contract with herself, and, at the time of the second inspection, had a contract drawn with the nurse who was going to be the supervisor; however, the woman was seriously ill and had not been able to sign the contract. At the time of this inspection, the facility was not providing services and could not legally do so until licensed. Tag A401 of the February report cites a violation of Rule 58A-5.0181(3)(a)1, Florida Administrative Code, and states, "Resident No. 5 was admitted on January 31, 1999, and there was no dated health assessment on his record." Conclusions of Law for Case Numbers 00-1963 and 00-1965 Again, the Division of Administrative Hearings has jurisdiction over the parties and the subject matter of the cases. The various tags will be discussed in reverse order. Regarding Tag A401 of the February report citing Respondent for failing to have a dated health assessment for a resident, the proper citation of the rule alleged to have been violated is 58A-5.0181(2), Florida Administrative Code. As stated above, subparagraph (a) of paragraph (2) provides that the physician or advanced registered nurse practitioner shall provide the administrator with a medical examination report no later than 30 days after admission. In this instance, the reports were on-site and were inspected. However, this is not a repeat violation because there is no rule that requires these reports to be maintained on-site (the previously cited violation), and the records were not inspected on the previous visit. Therefore, this was the first time this violation was discovered. Regarding the violation regarding the absence of a signed contract by the supervising nurse (Tag 302), the facility was not licensed to provide LNS, and there were no services being rendered at the time. Therefore, there is no basis for a fine. In so far as this violation relates to the denial of licensure, Rule 58A-5.031(2), Florida Administrative Code, provides: In accordance with rule 58A-5.019, the facility must employ sufficient and qualified staff to meet the needs of residents requiring limited nursing services based on the number of such residents and the type of nursing service to be provided. * * * Facilities licensed to provide limited nursing services must employ or contract with a nurse(s) who shall be available to provide such services as needed by residents. The facility shall maintain documentation of the qualifications of nurses providing limited nursing services in the facility’s personnel files. While the absence of the contract is a reason not to issue a license, under the circumstances in this case, it would have been more appropriate for the inspectors to note the discrepancy, and permit the Respondent to send them a copy of the contract when it was signed. It is not a basis for levying a fine. Regarding the alleged violation for failing to maintain a policy for how services will be rendered (Tag N205), first, there is no Rule 58A-5.0131(2)(ff), Florida Administrative Code, as cited by the Agency. Rule 58A-5.0131, Florida Administrative Code, contains various definitions, none of which relate to the alleged violation cited in the inspection report. A review of Rule 58A-5.031, Florida Administrative Code, which deals with the providing of limited nursing services, starts off by stating that a facility must be licensed before it can provide these services. From the description of the violation cited and the testimony of the witnesses, this apparently relates to the absence of a policy setting forth what services will be provided. There is no requirement in Rule 58A-5.031, Florida Administrative Code, for such a policy. The only provision of this rule remotely related to a requirement for some policy and procedure provides: The facility must ensure that nursing services are conducted and supervised in accordance with Chapter 464, F.S., and the prevailing standard of practice in the nursing community. The rule does not mandate how the facility will ensure this. In sum, there is no rule that requires such a policy be on site. Regarding the alleged violation of Rule 58A- 5.031(2)(d), Florida Administrative Code, by failing to maintain a log of nursing services rendered (Tag N201), there was no requirement to maintain the log in the absence of performing the services.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department dismiss the complaints in Case Nos. 00-1963 and 00-1964. That the Department not license the Respondent with regard to Case No. 00-1965, but permit the Respondent to re- file for the subject license without jeopardy due to any of the inspections which have been the subject of Case Nos. 00- 1963 and 00-1964. DONE AND ENTERED this 9th day of February, 2001, in Tallahassee, Leon County, Florida. ___________________________________ STEPHEN F. DEAN 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 9th day of February, 2001. COPIES FURNISHED: Michael O. Mathis, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308 Christal L. Caso, Administrator Paradise Manor 2949 Carriage Drive Daytona Beach, Florida 32119 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308 Ruben J. King-Shaw, Jr., Director Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3116 Tallahassee, Florida 32308
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: On April 19, 1990, petitioner, Don R. Blackburn, was a candidate on the engineering intern portion of the professional engineer examination given in Miami, Florida. The test was administered by the Department of Professional Regulation (DPR) on behalf of respondent, Board of Professional Engineers (Board). On July 25, 1990, the Board issued a written uniform grade notice advising petitioner that he had received a grade of 66 on the examination. A grade of 70 is necessary to pass this part of the examination. By letter dated August 15, 1990, petitioner requested a formal hearing to contest his score. In his letter, Blackburn generally contended that the examination was unfairly administered because certain books were allowed to be used by some but not all candidates, untrained proctors were given the authority to scan review materials and determine which could or could not be used by the candidates, and because of the chaos and confusion that occurred during the examination, he was unable to attain a score that he otherwise would have been able to achieve. Blackburn is an engineer for Lee County and is seeking to pass the engineering intern portion of the examination. A passing grade on that portion is a prerequisite to sitting on the second part of the professional engineer examination. He has taken the examination on a number of occasions and has gradually improved his score to just short of passing. Indeed, on the October 1989 examination, Blackburn scored a 69, or just one point less than the required 70. Prior to the April 1990 examination, the engineering intern portion of the professional engineer examination was an unrestricted open book examination. This meant candidates could use any and all reference and review materials during the examination. Beginning with the April 1990 examination, the Board imposed certain restrictions on the use of review materials. As early as October 9, 1989, the Board's executive director sent a memorandum to all candidates on the October 1989 examination, including Blackburn, concerning the new restrictions. The memorandum stated in part: Please be advised of certain restrictions listed in the Candidate Information Booklet which will not be implemented until the April 1990 examination. These restrictions are found in the "Examination Administration Information" section and are concerning the following two areas: * * * 2. Books or information containing sample questions or engineering problems may also be brought provided they are bound. Again, the new restrictions listed in the Candidate Information Booklet regarding the above two areas WILL NOT be implemented until the April 1990 examination. All candidates on the April 1990 examination were given a Candidate Information Booklet prepared in January 1990 by DPR's Bureau of Examination Services. On pages 13 and 14 of the booklet was found the following information: This is an open book examination. Candidates may use textbooks, handbooks, notes, and reference materials which are bound, copyrighted and printed. The term "bound" refers to material that is bound permanently, hard or paperback stitched or glued, or spiral, plastic or three-ringed bound. The printed material must remain contained (bound) in its cover during the entire examination. No writing tablets, unbound tablets or unbound "loose notes" will be allowed. No books with contents directed toward sample questions or solutions of engineering problems are permitted in the examination room. Examinees are not permitted to exchange reference materials or aids during the examination. (Emphasis in original) What the emphasized language meant is that "review" manuals, which contain problems and solutions, were prohibited from use during the examination while "reference" books were not. However, the booklet did not list the specific names of published materials that would be permitted or excluded. In order to ascertain which books he might use on the next examination, on March 27, 1990, Blackburn telephoned the Board in Tallahassee and spoke with a female employee named "B. J." who advised him that "review publications directed principally towards the solution of engineering problems" would be excluded. When asked if "Lindeburg's Sixth Edition" would be authorized, B. J. told Blackburn she wasn't sure and that it would be left up to the proctors in the room. She did say, however, that a review manual authored by Schaum could be used. The engineering intern examination in April 1990 was administered in two separate rooms at the Radisson Hotel in Miami, Florida. Blackburn was in a "very large" upstairs room with approximately thirty other candidates while a similar number took the examination in a downstairs room. The examination in the upstairs room began at 8:43 a.m. after various instructions were read to the candidates by the examination supervisor, Jeannie Smith, a veteran of twenty years in proctoring and supervising professional examinations. According to Smith, there was "considerable confusion" concerning which books could be used by the candidates, particularly since this was the first examination given with the new restrictions. She also acknowledged that there was "chaos" prior to the beginning of the examination and that this was, "extremely upsetting" to the examinees. However, before the examination began, Smith announced on a microphone the names of certain books which the Board had given her that were either prohibited or could be used by candidates. She further advised that if candidates had any questions they were to come to a bulletin board by the microphone where she had posted Xerox copies of the covers of various books. If a book could be used, it had the word "YES" printed on the cover while a "NO" was printed on those covers of books that could not be used. 1/ It is noted that only one cover sheet with a "YES" was posted, that being the Civil Engineering Reference Manual, Fourth Edition, Michael R. Lindeburg. However, at least three candidates who took the examination that morning, including petitioner, did not see the posted materials nor hear the invitation for candidates to come to the bulletin board. One book in issue that was specifically prohibited was Engineer In Training Review Manual, Sixth Edition, Michael R. Lindeburg, which contained 378 solved problems, and thus fell within the general prohibition of review manuals described on page 14 of the Candidate Information Booklet. However, those candidates who had the Seventh Edition of the same book were allowed to keep and use that manual even though it contained 422 solved problems, or some 44 more solved problems than was contained in the prohibited Sixth Edition. By allowing those students having the Seventh Edition to use the same even though it contained "review" materials, DPR violated the instructions contained in the Candidate Information Booklet and gave an advantage to those candidates not enjoyed by others, including petitioner. In addition, at least one other candidate in the upstairs group was allowed to use a prohibited review manual (Schaum's Outline Series, Theory and Problems of Electric Power Systems) but still that candidate did not attain a passing grade. Petitioner also contended that candidates taking the examination in the downstairs room were allowed to use language dictionaries during the morning part of the examination while those upstairs could not. 2/ Petitioner's contention is grounded upon hearsay evidence and accordingly it is found that no competent proof to support this claim was submitted. However, there was obviously some confusion over this matter because, after receiving complaints of this nature from two candidates, Smith telephoned the Board's offices in Tallahassee during the lunch break to ascertain whether such books could be used. Upon learning that they could not, she advised the upstairs group at the beginning of the afternoon session that dictionaries were not allowed. Blackburn also established that during the examination proctors went from desk to desk examining the materials that each candidate had in his possession. If a candidate had what the proctor perceived to be a book containing solutions to problems, the candidate was told to put the book on the floor. In the alternative, she candidates were told that if they tore the offending pages out of the book, they could continue using the remaining materials. Petitioner has complained that the proctors were not engineers and they were untrained in determining whether a book was acceptable or not. The Board has conceded that engineers do not proctor examinations but asserted that they are intelligent enough to determine whether books fall within the proscribed category. According to Blackburn's proctor at the examination, George Walton, a retired Coast Guard captain and engineering graduate of the Coast Guard Academy, he relied upon the list of approved and disapproved books supplied by the Board prior to the examination in determining whether materials would be excluded or not. Walton also stated that if he examined a book and found it contained solutions, he would disallow the same unless the offending pages were removed. A DPR expert in testing and measurements, Dr. Joseph A. Klock, examined the pass/fail rate for the examination taken by Blackburn and compared that rate to the October 1989 examination rate. Doctor Klock found no significant difference in the two rates and concluded that there was no statistically significant difference in performance of candidates over those time periods despite the confusion which occurred during the April 1990 examination. Blackburn did not present any evidence to show that if he had used the Seventh Edition of the Engineer In Training Review Manual, he would have been able to achieve more points on a particular problem and thus would have had a passing grade. Blackburn's principal complaint was that he had spent many hours preparing for the examination in question, that he was forced to guess which books to bring to the examination, and because of the confusion and chaos that took place at the beginning of the examination as well as his awareness that others were using a review manual with solved problems, it was impossible for him to give his best effort on the examination.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner's request to receive a passing grade on the April 1990 professional engineer examination be DENIED. However, petitioner should be entitled to retake the next examination at no charge. DONE and ENTERED this 28th day of November, 1990, in Tallahassee, Florida. DONALD R. ALEXANDER 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 28th day of November, 1990.
Findings Of Fact The Petitioner, James Ilardi, was an unsuccessful candidate for the June, 1989 General Contractor's Construction Examination in the State of Florida. He is an experienced contractor and is licensed in the State of South Carolina. He is the past President of the Charleston Contractor's Association in South Carolina. He has experience with most types of building construction, including office buildings, military facilities, hospitals, factories and other large projects. He served as Chief Executive Officer for a design and construction firm for a period of ten years. The Respondent is an agency of the State of Florida charged with administering the certified general contractor's examination and with regulating the licensure and practice of construction contractors in the State of Florida. The Petitioner sat for the certified general contractor's examination in June, 1989. He has challenged the scoring of his answers to questions 2, 11, 12, 17, 19 and 33 on that examination. During the course of the hearing, he abandoned his challenges to questions 2, 17, 19 and 33. If he were accorded correct answers to either of the remaining challenged questions, numbers 11 or 12, he would have a sufficient score to obtain a passing grade of 70 on that examination. Both questions 11 and 12 used a "critical path network diagram" for use in working out the correct answer to the questions. The Petitioner criticized the diagram as being obscure, difficult to read and containing error. He maintained that it was not supported by the representations found in the reference materials recommended by the Respondent, in its "Instructions to Candidates", as being the material to use to arrive at answers to the questions. The Petitioner contends that the size of the diagram, "the multiple fonts, the difference in the intensity of the print, and the use of symbols all contribute to the obscurity and illegibility of the diagram, itself". In particular, he complains that the symbol listing includes a symbol which he did not find on the diagram. That is, the symbol for "structural steel" and "steel bar joists, which is two straight vertical parallel lines. He also complains that general practice in the construction industry, in his experience, and as indicated in the reference work "Construction Contracting", pages 325-326, one of the references listed for candidates to use in answering these questions, recommends against the use of symbols in lieu of abbreviated notations for description of activities on such a diagram. The main complaint he had concerning the use of symbols, however, was the fact that use of symbols, and having to constantly defer to the symbol legend on the exam materials, was time-consuming and was not generally accepted industry practice or procedure. He contends that the diagram contains error or is obscure and does not conform to the Respondent's recommended reference materials nor to industry standards and. is deficient in format, design and reproductive quality. Thus, he maintains that questions 11 and 12 do not adequately test the knowledge or skills necessary for licensure as a general contractor. The Petitioner acknowledged that the questions at issue had been reviewed twice by the Respondent's examination content specialist and that an "item analysis and review process" by the Respondent's expert resulted in the Respondent maintaining its position that the two questions and supporting materials were valid in fairly testing the knowledge of general contractor licensure candidates. In summary, the Petitioner contends that as to question 11, the symbol for steel bar joists, the two parallel vertical lines, does not appear on the diagram; therefore, he was unable to determine whether his answer was correct or not. As to question number 12, he maintains, in essence, that the use of symbols instead of brief abbreviated descriptions of the activities involved, accompanying the arrows in the diagram which indicate the critical path for the activity in question (paint work), render answering the question confusing and time consuming in having to constantly refer to the symbol legend and look for the symbols. He states that, in his 20 years of construction industry experience, he has not had to use symbols in working with a critical path diagram. The Petitioner did not demonstrate, however, that the use of symbols was incorrect procedure as delineated in the reference materials supplied to the candidates and which they were instructed to use in answering the questions on the examination. The Respondent produced the testimony of Mr. Olson, a Florida certified general contractor, who is also employed with the National Assessment Institute which developed this examination. Mr. Olson, however, did not, himself, have a hand in developing the examination. Mr. Olson did, however, review the Petitioner's challenges to the questions at issue and his responses, reviewed questions 11 and 12, as well as the Respondent's asserted correct answers to those questions and the methodology used in reaching those answers. Mr. Olson established that this was an "open-book" examination and the candidates were informed of and supplied all necessary reference materials to answer these two questions. The only optional consideration was that candidates could have used a calculator to speed up their calculations and were informed that it was permissible to use a calculator. Question 11 required candidates to calculate the total time necessary to install structural steel and steel bar joists in interpreting the activity network represented by the diagram in question. They were asked to calculate whether the installation was ahead of schedule or behind schedule and by how much. Mr. Olson established that the correct response was "C", which is two days behind schedule. Mr. Olson demonstrated that it was quite possible for a candidate to make this calculation and track this in formation on the diagram provided the candidates, through reading the path with the symbols, which alphabetically represent the activity, and which are numerical in representing the time in days. He established that this is very typical of the construction industry, related to the preparation, reading and interpreting of blueprints. A tremendous amount of symbols and legends are typically used in preparing and interpreting blueprints. Mr. Olson established that the pertinent number, 85 days, could be calculated for installation of structural steel and steel bar joists, based upon the information supplied to the candidates. By using the diagram and the information supplied with the question, the candidate can calculate that the actual number of days that were taken for the job was 87 days and therefore, that the project, at that point, was two days behind schedule. Mr. Olson performed this calculation by using the actual diagram the Petitioner used and reference information the Petitioner was given to use in answering the actual examination question at issue. He also established that the two parallel lines representing steel bar joists and structural steel on the diagram, and in the symbol legend supplied with the diagram, were indicated on the diagram supplied to Mr. Ilardi at the examination. Mr. Olson also established that the reference quoted for question number 11 was walkers Building Estimator's Reference Book, which, indeed, listed the type of activity network depicted in the diagram used by candidates for question number 11 and 12. Mr. Olson also established that question number 12 requires a candidate to work through an activity network diagram to find the amount of days necessary from the beginning of a project to the time the painting activity begins. He established that the answer could be obtained without the use of any other reference materials other than the information depicted on the diagram, itself, associated with the question. He established that the only correct answer from that information on the diagram could be "D" or 153 days. The Petitioner did not establish that his answer to question number 12, nor to question number 11 for that matter, was a correct answer and did not establish that there was any misleading quality or ambiguity in the wording of the questions and the associated information which would mislead a candidate into calculating the wrong answers or that there was erroneous information depicted in the reference materials or the diagram which would result in the candidate being misled into giving a wrong answer to questions 11 and 12.. Mr. Ilardi challenged the examination as to the testing environment, as that relates to the ambient light level in the examination room and to the acoustic qualities of the room. He also asserted that the test was not standardized throughout the State and was biased due to age, because of the perceived hearing and vision difficulties which he believed were caused by the acoustics in the examination room and the light available. Other than stating his opinions in this regard, he produced no testimony or evidence concerning these alleged qualities of the testing environment. It was demonstrated by she Respondent that, indeed, the test is standardized throughout the State and is the one given to all candidates in Florida, regardless of the test location.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is therefore RECOMMENDED that a Final Order be entered denying Petitioner's request to receive a passing grade on the certified general contractor's licensure examination. DONE and ENTERED this 4th day of May, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 this 4th day of May, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-3784 Petitioner's Proposed Findings of Fact Rejected. The Petitioner was not qualified as an expert witness. Other than that, this finding is accepted. Rejected, as not in accord with the preponderant weight of the evidence. Rejected, as not supported by the preponderant weight of the evidence. 4.A.-4.C. Accepted. 4.D. Rejected, as not in accordance with the preponderant weight of the evidence. Accepted, but not itself materially dispositive. Rejected, as not in accordance with the preponderant weight of the evidence. Rejected, as not in accordance with the preponderant weight of the evidence. Rejected, as not in accordance with the preponderant weight of the evidence and as subordinate to the Hearing Officer's Findings of Fact on this subject matter. Rejected, as not constituting a finding of fact, but rather a quotation from the transcript of the proceedings. Rejected, as not in accordance with the preponderant weight of the evidence and as subordinate to the Hearing Officer's Findings of Fact on this subject matter. Rejected, as immaterial and not probative of the issues of whether the questions were ambiguous or misleading or whether the Petitioner's answers were correct. Rejected, as not in accordance with the preponderant weight of the evidence. Rejected, as not in accordance with the preponderant weight of the evidence. Rejected, as not in accordance with the preponderant weight of the evidence, and as not materially dispositive. 4.1. Rejected, as not materially dispositive. Rejected, as immaterial. Rejected, as immaterial. Accepted, but not a matter of factual dispute and immaterial. Respondent's Findings of Fact 1-10. Accepted. COPIES FURNISHED: Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board P.O. Box 2 Jacksonville, FL 32202 Kenneth D. Easley, Esq. General Counsel Department of Professional Regulation 1940 N. Monroe Street, Ste. 60 Tallahassee, FL 32399-0792 E. Harper Field, Esq. Deputy General Counsel Department of Professional Regulation 1940 N. Monroe Street, Ste. 60 Tallahassee, FL 32399-0792 Mr. James Ilardi P.O. Box 8095 Jacksonville, FL 32239
Findings Of Fact Based upon my observation of the witnesses, their demeanor while testifying, the documentary evidence received, and the entire record complied herein, I make the following findings of fact: In order for Petitioner to obtain a license as a general contractor in Florida, he is required to successfully complete a certification examination. The examination is prepared by the ACSI National Assessment Institute ("NAI") and administered by the Department of Professional Regulation (DPR). The NAI develops the procedures for administering the certification examination. Petitioner took the general contractor's examination administered by DPR in October 1989. In order to pass the examination, an applicant is required to achieve a passing grade on all three parts of the exam. Petitioner had previously obtained a passing grade on Part I of the exam. Therefore, Petitioner only attempted Parts II and III during the October 1989 examination. Petitioner obtained a passing grade on Part III of the October 1989 examination. However, Petitioner received a grade of 64 on Part II of the October 1989 examination. A grade of 69.01 is required to pass Part II. The first twenty questions on Part II of the October 1989 exam were worth four points each. Questions 21-40 were worth one point each. Petitioner would have to obtain an additional six points in order to achieve a passing grade. Petitioner has not challenged any specific questions on the examination. Instead, his challenge is based solely upon the manner in which the examination was administered. The exam administration procedures were developed by NAI. All exam proctors are required to abide by these guidelines. These guidelines prohibit an exam taker from providing his own writing instruments. DPR provides each of the exam takers with a pencil. The policies and guidelines utilized in administering the exam establish a "one pencil" policy for all exam takers. Petitioner was treated no different than any of the other exam takers, all of whom were given only one pencil and instructed that they were not allowed to use any other writing implements. The testing information booklet provided to all applicants prior to the examination advised them that they would not be able to bring pencils into the examination room. The three-part examination was administered over a two-day period. Because Petitioner had already passed Part I of the exam, he was not present for the first day of the two-day examination. Part II of the exam is four and a half hours long and commenced on the morning of the second day. Petitioner arrived at the examination room at 7:00 a.m. on day two of the exam in accordance with the instructions that he had been given prior to the exam. When he arrived at the examination room, most of the exam takers were seated, instructions were being given and proctors were distributing materials, including one pencil per applicant. Petitioner told the exam proctor that he was a "hard presser" and asked that she provide him with an additional pencil. The proctor advised Petitioner that she was unable to give him an additional pencil because the number of pencils for the exam were limited. She told him that she would provide him with a sharp pencil whenever he raised his hand. Petitioner broke his pencil while filing out the informational sheets prior to the commencement of the exam. Petitioner raised his hand as instructed in order to obtain a new pencil. When he did not get an immediate response, he stood up and was promptly told to sit back down. The exam began before he received a new pencil. When the exam started Petitioner had still had not completed the informational sheets so he was briefly delayed in starting the exam. However, Petitioner's contention that he lost at least ten minutes in beginning the exam appears to be overstated. Petitioner broke his pencil on several other occasions during the exam. Each time he received a sharpened pencil from the proctor shortly after he raised his hand. Petitioner believes that he lost approximately 20-30 minutes because of his frequent need to obtain new pencils. Petitioner contends that, because of the time that he lost, he was unable to verify and check his answers and that he incorrectly transferred some of the answers from his worksheets to his answer sheet. Petitioner's testimony that he lost as much as 30 minutes during the morning portion of the exam because of the continuous need to replace pencils is not accepted. While a broken pencil may have been an annoyance and a brief delay, it should not have been the major disruption that Petitioner has made it out to be. He was not required to search the room for a proctor or a new pencil. Petitioner answered all of the questions on the examination. Petitioner has not established that any of his answers would have been different if he had an additional pencil or additional time to review his work. There is no indication that Petitioner had to leave his seat in order to obtain a new pencil. Even if his pencil broke, Petitioner should have been able to review his prior work and check his answers. While Petitioner may have lost a few minutes at the beginning of the examination because he had to go back and fill out the informational sheets, the evidence was not sufficient to establish that he lost approximately 20 percent of the exam time as he claimed. Furthermore, the evidence did not establish that Petitioner would have answered any of the questions differently. During the lunch break, Petitioner went out and bought a pencil sharpener which he used during the afternoon portion of the exam (Part III). With the help of the pencil sharpener, Petitioner completed Part III with only one pencil. As indicated above, he passed that section of the exam. Under the rules of the Board, Petitioner must pass all three sections of the exam within three consecutive administrations of the exam in order to be deemed to have passed the entire exam. Petitioner retook the entire exam, in February 1990 and passed Past I and Part II. However, he received a failing grade of Part III.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner's request for reexamination on Part II of the general contractor's examination administered in October 1989 be DENIED. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26 day of September 1990. J. STEPHEN MENTON 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 this 26 day of September 1990. APPENDIX Both parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Adopted in substance in Findings of Fact 3. Adopted in substance in Findings of Fact 5. Adopted in substance in the Preliminary Statement. Adopted in part in Findings of Fact 6, 7 and 12. The remainder is rejected constituting argument rather than findings of fact. Rejected as constituting argument rather than a finding of fact. This subject matter is addressed in the Preliminary Statement. Adopted in part in Findings of Fact 2. However, no evidence was presented regarding procedures on prior examinations. Therefore, that portion of the proposal is rejected as unsub- stantiated by competent evidence. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Adopted in substance in Finding of Fact 3. Adopted in substance in Finding of Fact 5. Adopted in the Preliminary Statement. Adopted in substance in Findings of Fact 6, 7 and 12 except the last sentence whic is rejected as constituting a conclusion of law. COPIES FURNISHED: Mr. Frank A. Cerra 24 Seneca Road Fort Lauderdale, Florida 33308 Vytas J. Urba, Esquire Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0750 Fred Seely, Executive Director Construction Licensing Board Post Office Box 2 Jacksonville, Florida 32201
Findings Of Fact Petitioner is licensed to practice chiropractic in the State of Florida, and is seeking certification in physiotherapy. She took the practical examination in physiotherapy administered by the Respondent on November 11, 1989, receiving a grade of 71.8%. The minimum passing grade on this practical exam was 75%. Thereafter, Petitioner timely requested a hearing to determine if she should be granted additional credit on this practical exam, and based thereon, whether she should receive certification in physiotherapy. It was established that the practical exam was properly administered, appropriate standardization procedures were followed, and each examiner independently graded Petitioner's exam and was qualified to serve as an examiner. At hearing, the Petitioner solely disputed the score she received in the content areas of ultrasound and cryotherapy. In each of these areas, she received a score of 3 out of a possible 4 credits. A four point scoring system is used on the practical examination. A score of 4 means that the candidate demonstrated an exceptional knowledge and understanding of the subject area; a score of 3 represents an adequate understanding; a score of 2 indicates an inadequate knowledge of the subject area; and a score of 1 indicates that the candidate would be a danger to the public if allowed to practice in that particular subject area. If a grader feels that the candidate's answer demonstrates a degree of knowledge that is between two of these scores, a .5 credit can be given. This is a subjective, rather than an objective, scoring system that requires each examiner to use his own judgment in evaluating the completeness of a candidate's response; generally, there are no simple right or wrong answers to practical exam questions. In arriving at a candidate's overall percentage score, a score of 4 equals 100 points, a score of 3 equals 75 points, 2 equals 50 points, and 1 equals 25 points. A .5 score equals 12.5 points. For example, a score of 3.5 would equal 87.5 points. Each content area of the practical exam is weighted equally, and there were 4 content areas in the November, 1989 physiotherapy practical exam. Two examiners are used to score each candidate's practical examination, and the scores given by each examiner are then averaged to give the candidate's overall grade. In this instance, each examiner graded Petitioner's practical examination the same in all four content areas. Instead of the score of 3 on both the ultrasound and cryotherapy portions of the physiotherapy exam, if Petitioner received a 4 on either portion from one of the two examiners, a 3.5 on either portion from both examiners, or a 3.5 on both portions from only one examiner, she would receive an overall grade of 75%, which is the minimum passing score. Thus, if she received one additional raw point in these two content areas which are under challenge, she would receive a passing score. Regarding the practical exam content area of ultrasound, the Petitioner used a device known as a "coupling cushion" in applying ultrasound over bony prominences in the shoulder area in order to protect her patient from burning. This cushion is basically a water-filled container placed between the ultrasound device and the patient's skin. In addition, when the patient complained of no improvement in his condition after five days, the Petitioner raised the intensity of the ultrasound. Both Drs. Jeffrey Gordon and Ronald Scott, who were accepted as experts in physiotherapy, testified that the Petitioner's use of a coupling cushion and increasing the intensity of ultrasound after five days in response to patient complaints were acceptable methods of treatment. Support for the use of a coupling cushion over bony prominences while administering ultrasound is also found in authoritative treatises, Applied Physiotherapy and Physical Agents for Physical Therapists, excerpts of which were introduced at hearing. Dr. Scott was one of the two examiners who graded Petitioner's practical exam. He testified he gave her a score of 3 in ultrasound because, while Petitioner did demonstrate an adequate knowledge and understanding of the use of ultrasound, she did not demonstrate a depth of understanding regarding the use of ultrasound over bony prominences without a coupling cushion. He testified that there are other acceptable, and perhaps more efficient, ways of applying ultrasound to a shoulder than through a water coupling. However, he conceded that the Petitioner was never questioned about different theories or techniques of application for ultrasound. On the "comments" portion of the examination grade sheet, Dr. Scott included the following note next to Petitioner's grade in ultrasound: "limited and instructed poorly". He explained that this meant Petitioner had demonstrated limited knowledge of the content area. However, this conflicts with his assessment at hearing, and with the excerpts from treatises in the record which confirm the method of treatment demonstrated by the Petitioner. While Dr. Scott testified that there are other acceptable methods of applying ultrasound over bony prominences, none were specifically described. Indeed, Dr. Gordon pointed out that the failure to use a coupling cushion over a bony prominence would be neglectful since it would likely subject the patient to burning. There is no basis in the record to support Dr. Scott's comment that Petitioner was instructed poorly, and to the contrary, the only treatises in the record support the treatment methods used by the Petitioner. The other examiner, who was not present to testify, made the comment on his grade sheet for the Petitioner that she "needs work" in ultrasound. No evidence was presented to support this rather imprecise assessment. It is conceded by Respondent's expert witness, Dr. Scott, that Respondent's answer was acceptable. Based on the evidence in the record, it is found that Petitioner was incorrectly graded on the ultrasound portion of her practical examination. Rather than a grade of 3, meaning she gave an adequate answer, the evidence establishes that the technique she used was consistent with the only authoritative treatises in the record, as well as with the expert testimony of Dr. Gordon. The use of a coupling cushion over bony prominences is recommended to avoid burning the patient while administering ultrasound. Increasing the intensity of ultrasound after five days when the patient complains of no improvement, is reasonable and acceptable practice. However, since Dr. Scott testified that there are other unspecified methods which could also have been used in this situation, it cannot be found that Petitioner's answer was "exceptional", and therefore deserving of a grade of 4. Rather, she demonstrated a degree of knowledge and understanding between the grades of 3 and 4, or 3.5, which she should have received from both examiners on the ultrasound portion of this exam. Regarding the exam content area of cryotherapy, the Petitioner treated the patient, diagnosed as having a mild to moderate lumbar sprain/strain injury, by applying a cold pack wrapped in a warm, moist towel for ten to twenty minutes. Drs. Scott and Gordon acknowledged that this was an acceptable form of treatment for this condition. Authoritative treatises introduced in evidence confirm that this treatment is recommended, although other forms of treatment were also noted, including placing a cooled pack directly on the skin, or wrapping it with a dry towel. There is a conflict among the authorities regarding the placement of a cold pack directly on the skin. In her response on this content area, the Petitioner did not demontrate that she understood this conflict in authorities, but rather expressed the view, adopted by one authority, that cold packs should never be placed directly on the skin. Based upon the evidence in the record, it is found that Petitioner received the correct grade of 3 from both examiners on the cryotherapy portion of the practical examination. In contrast to the ultrasound portion of the exam, for cryotherapy there is clear evidence of conflicting methodologies for the treatment of a lumbar sprain/strain with cold packs. Petitioner did not demonstrate her knowledge of these conflicting methodologies, but simply demonstrated the one method which she prefers, which while acceptable, is not exclusively appropriate. Since the Petitioner's score should have been increased by .5 point on both examiners' grading sheets in the content area of ultrasound, she should have received one additional raw point, which results in her achieving an overall average of 75% on the practical examination, the minimum passing score.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing Petitioner's challenge to her grade in cryotherapy, but granting her challenge to the ultrasound portion of the November, 1989, chiropractic physiotherapy certification examination and awarding Petitioner a grade of 3.5 in ultrasound instead of 3, thereby increasing her overall grade from 71.8% to 75%, the minimum passing score, and as a result, approving Petitioner's certification in physiotherapy. RECOMMENDED this 18th day of October, 1990 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. CASE NO. 90-3402 Rulings on Petitioner's Proposed Findings of Fact: 1. Adopted in Finding 1. 2-3. Rejected as unnecessary. Adopted in Finding 6, but otherwise Rejected as unnecessary. Adopted in Findings 7-10. Adopted and Rejected, in part, in Findings 11, 12. Rulings on the Respondent's Proposed Findings of Fact: 1. Adopted in Finding 1. 2-3. Rejected as unnecessary. Adopted in Finding 2. Adopted in Findings 7, 8, but otherwise Rejected as unnecessary. Adopted in Findings 3, 6, 8. Adopted in Finding 12, but Rejected in Finding 10. Adopted in Finding 8, but Rejected in Findings 9, 10. Adopted in Findings 11, 12. Adopted in Finding 12, but Rejected in Findings 10, 13. COPIES FURNISHED: Patricia Guilford Executive Director Board of Chiropractic 1940 North Monroe Street Tallahassee, FL 32399-0792 Brian S. Fischer, Esquire 3695 W. Boynton Beach Blvd. Suite 8 Boynton Beach, FL 33436 Vytas J. Urba, Esquire Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Kenneth E. Easley, Esquire Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792
