Findings Of Fact The Petitioner is a certified public accountant licensed in the State of Pennsylvania, having been licensed in 1961. The Petitioner is seeking licensure as a certified public accountant in Florida pursuant to the provisions of Chapter 43.308(3)(b), Florida Statutes, and Rule 21A-29.01(1)(b), Florida Administrative Code, that is, he seeks licensure in Florida by endorsement based upon his Pennsylvania licensure without the necessity for taking the Florida examination. At the time of the Petitioner's initial licensing in the State of Pennsylvania in 1961 he met Florida's requirements in the areas of education and experience. The Petitioner currently holds a valid license in Pennsylvania and is licensed in other states. The Board of Accountancy reviewed the Petitioner's application and determined that he met the Florida requirements for education and experience and that he was administered the same examination in Pennsylvania in 1961 that was administered in Florida in 1961, the uniform certified public accountancy examination administered by the American Institute of Certified Public Accountants (AICPA). The Board determined, however, in its non-final order, that the Petitioner did not receive grades on that examination administered in Pennsylvania that would have constituted passing grades in Florida and denied his application. The rules of the Board require that an applicant for licensure as a certified public accountant receive a grade of 75 or above on all parts of an examination administered by the American Institute of Certified Public Accountants. See Rule 2IA-28.05(2)(3), Florida Administrative Code. The rules in effect in 1961 also required that a grade of 75 or above be received on all four subjects of the examination in order to achieve licensure in Florida. See Rules of the State Board of Accountancy Relative to Examinations and the Issuance and Revocation of Certificates, Rule 1(f). See also Section 473.10, Florida Statutes (1961). The requirement that applicants for licensure by endorsement receive grades on all four areas of the AICPA Exam of 75 or better has been enforced in Florida since the 1930's and has been a requirement embodied in the rules of the Board since 1949. In February, 1961, the Pennsylvania Board of Accountancy, pursuant to a resolution enacted for insular reasons of its own, determined to accept as passing the Petitioner's and other candidates' scores in the Law and Practice portions of the AICPA licensure examination, even though those grades were below the score of 75. The Board thus deemed that the Petitioner passed the examination for purposes of licensure in Pennsylvania with a score of "75" by fiat, even though in fact the Petitioner did not receive an actual score of 75 in those two subject areas as determined by the AICPA which administered and graded the examination. The acceptance of the lower grade on the part of the Pennsylvania Board was not done pursuant to a regrading of the Petitioner's exam in an attempt to correct mistakes or errors in the AICPA's finding regarding his score, but was rather simply due to an arbitrary determination by the Pennsylvania Board that for the Petitioner and certain other Pennsylvania applicants the lower grade in that particular instance would be considered as passing. The Petitioner had no knowledge that the Pennsylvania Board had taken this action in arbitrarily upgrading his scores on two portions of the exam so that he passed the entire exam until he began his application process with the Florida State Board of Accountancy in September, 1980. During its investigation of the Petitioner's application for licensure by endorsement, the Florida Board of Accountancy ascertained that the Petitioner had in fact received grades of 65 in the Law and Practice pertions of the Uniform AICPA Examination which were then subsequently arbitrarily raised by resolution of the Pennsylvania Board. The Florida Beard has at no time accepted as passing grades for a licensure examination those grades by applicants of less than 75 on the AICPA examination. It is true that prior to the Florida Board's becoming aware, in 1973, of the fact that Pennsylvania had arbitrarily raised some grades of its applicants, it did in fact accept some similarly situated candidates for licensure by endorsement in Florida. After becoming aware at that time of this arbitrary grade-raising process, the Board has consistently refused licensure to applicants from other states who actually received less than 75 on the AICPA Examination as determined by the AICPA. For considerations of equity and fairness the Board did, however, allow candidates who had already been licensed in Florida by endorsement prior to the Board's becoming aware of this anomaly to retain their licenses. Since the Petitioner failed to meet the AICPA examination requirement of a grade of 75 or better on all portions of the examination which was set forth and adopted in the Florida rules and statutes in effect at the time of his licensure in Pennsylvania in 1961, his request for licensure by endorsement was denied by the Board's non-final order on December 8, 1980.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of counsel, it is RECOMMENDED that the denial of the Petitioner's application for licensure by endorsement by the Board of Accountancy of the State of Florida be upheld and that the petition be denied. DONE AND ENTERED this 22nd day of June, 1981 in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 1981. COPIES FURNISHED: George L. Waas, Esquire 1114 East Park Avenue Tallahassee, Florida 32301 John J. Rimes, III, Esquire Assistant Attorney General Suite 1601, The Capitol Tallahassee, Florida 32301
The Issue The issue presented is whether or not Petitioner passed the 1987 chiropractic examination.
Findings Of Fact Petitioner, Mary Campilii, was a candidate for the May 14-17, 1987 chiropractic examination. Petitioner achieved an overall score of 72, as reflected by an upward revision to her original score of 66, on the practical section of the examination. Petitioner achieved a score of 76 on the Florida laws and rules section of the examination. A minimum score of 75 is required to pass both the practical and laws and rules sections of the examination. Petitioner has challenged the method of grading utilized by the Respondent contending that it is subjective as it elates to her, and did not properly reflect her level of achievement and knowledge to the questions that she answered on the May 1987 examination. Petitioner failed to demonstrate that she demonstrated expert or superior knowledge in her answers to any of the questions on the May 1987 exam that she now challenges. The oral practice examination for chiropractic certification is an independent, subjective grading of a candidate's responses to questions asked by two graders. The graders have all been licensed to practice chiropractic for more than five (5) years in Florida and have undergone several hours of standardization training prior to examining the candidates for license certification. One of the techniques required of graders is that they must write their comments if they give a candidate any score less than a 3, which is a passing grade. The grade range is from 1-4. A score of 3 is assigned when a candidate demonstrates minimum competency and a score of 4 is given when a candidate demonstrates superior or expert knowledge in the subject area tested. Petitioner presented Thomas P. Toja, an expert in grading chiropractic examinations for the Board, who offered his opinion that had the grading system utilized by Respondent been different, i.e. a system whereby a candidate could be accorded a score somewhere between a 3 and 4, when such candidate has demonstrated more than minimum competency but less than superior or expert knowledge in the subject area tested, a candidate, such as Petitioner, could have achieved an additional 3 points to her score of 72, and thereby received a passing score of 75. Petitioner has not, however challenged validity of the existing rule which permits Respondent to utilize the grading procedures applied in this case. Stephen Ordet, a licensed chiropractor in Florida for more than 7 years was received as an expert in the grading of chiropractic examinations in Florida, and was one of the graders during the May 1987 examination. Ordet's opinion, which is credited, was that Petitioner did not earn a score of 4 on any of the questions that she now challenges, and was correctly assigned a score of 3 for each of the responses she gave to questions she challenged. Thomas P. Hide, a chiropractor who specializes in the area of sports related injuries, was tendered and received as an expert in the area of reviewing x-rays and the grading of the chiropractic examination. Hide credibly testified and it is found that Petitioner was properly assigned a score of 3 on questions 8, 12, 20, 22, 28, 29, 30 and 33.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order finding that Petitioner failed to demonstrate that she met the minimum criteria to pass the challenged chiropractic examination and deny her request for licensure. DONE and ENTERED this 8th day of December, 1988, in Tallahassee, Florida. JAMES E. BRADWELL 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 8th day of November, 1988. COPIES FURNISHED: H. Reynolds Sampson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Dr. Mary Camiplii 2921 Buckridge Trail Loxahatchee, Florida 33470 Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Lawrence A. Gonzalez, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Respondent holds Florida Teacher's Certificate No. 155050, issued by the State of Florida, Department of Education. It certifies Respondent to teach in the area of social studies. This certificate is valid through June 30, 1997. At times relevant to the inquiry, Respondent was employed as a teacher at Mandarin High School in the Duval County School District, Duval County, Florida. Respondent is a tenured teacher in the Duval County School System with a continuing service record of 13 years. By virtue of complaints that have been made against Respondent for allegedly inappropriately touching female students and a complaint by one female student that Respondent had made sexually suggestive statements, Dr. Dalton T. Epting, Principal at Mandarin High School, admonished Respondent. This admonishment was made by correspondence dated March 18, 1991. It instructed Respondent that in the future, Respondent should: Not touch any student in an improper manner. Not make statements to students that could be interpreted as unprofessional. Send students who indicate personal problems to their guidance counsellor rather than trying to solve their problems yourself. While Respondent did not admit to any impropriety in his association with the two complainants, he did acknowledge receipt of the correspondence which instructed him concerning his future conduct. Dr. Epting further admonished Respondent on June 11, 1992. This admonishment followed a complaint by Ann Edgecombe, social studies department chairperson at Mandarin High School. Her complaint was made on June 8, 1992. Having examined the complaint, interviewed the Respondent, and taken into account a prior incident on March 24, 1992 between Respondent and Ms. Edgecombe, the correspondence from Dr. Epting to Respondent instructed Respondent that in the future, Respondent should: Stop verbal harassment and physical intimidation of Mrs. Edgecombe. Direct your personal and department concerns to her in private and in a civil manner. Bring to me any complaints you have concerning Mrs. Edgecombe's handling of departmental duties. In the school year 1992-93, Respondent taught history to Misty Nicole Dixon. During the class, Ms. Dixon heard Respondent discuss girls on mountain tops pressing their breasts against Respondent's chest. Ms. Dixon saw Respondent make hand gestures which described how big the imaginary girls' breasts were. While Ms. Dixon was in class Respondent placed his arm around her and touched the underside of her breast. This made the student feel uncomfortable and scared her. This physical contact happened three or four times. Other forms of hugs which Respondent gave Ms. Dixon made her feel uncomfortable and scared. Ms. Dixon indicated that Respondent's comments about girls' breasts made her sick. When Respondent put his hand around Ms. Dixon, it also was on what Ms. Dixon refers to as her "butt", meaning he touched her hip. She indicates that this contact was not in a manner in which she was being grabbed by Respondent. Ms. Dixon heard Respondent tell another class member, Michelle Williams, "how pretty she is". Ms. Dixon also overheard Respondent ask Ms. Williams where Ms. Williams lived. Ms. Williams also overheard the comment made in class in which Respondent described being on a mountain top with a girl with that girl's breasts pressed against Respondent's chest. When Respondent described having a girl's breasts against his chest, he used hand gestures to describe the girl's breast size, as observed by Ms. Williams. This remark made Ms. Williams feel uncomfortable. While in class, Respondent placed his arm around the waist of Ms. Williams in such a manner that his thumb was touching a little of Ms. Williams' breast. This made Ms. Williams feel uncomfortable. This activity took place two or three times. Ms. Williams observed Respondent touch Ms. Dixon in a similar manner to Ms. Williams' experience while in class. Respondent put his hand through Ms. Williams' hair while in class. This made Ms. Williams feel uncomfortable. Ms. Williams also observed Respondent hug another class member, Alicia Collins, who was at that time Alicia Backner. Ms. Williams noted that Respondent asked for the hugs that he gave her, Ms. Dixon, and Ms. Collins. While standing outside his classroom, Respondent asked Ms. Williams where she lived, whether she road a bus or drove a car to school, because, according to Ms. Williams, he wanted to have "a party or something". During this conversation, Respondent made Ms. Williams aware that Respondent wanted Ms. Williams to "pick him up and help him". Ms. Williams' response to these remarks was, as she states it, "I was wondering why he would ask me that". Ms. Collins heard Respondent comment about a female student who walked into the class having large breasts, and this remark was accompanied by a gesture from Respondent concerning that student's breast size. This took place in the school year 1992-93. While in class, Ms. Collins was discussing with two other female students the subject of silk boxers. Respondent replied that his girlfriend liked his silk boxers. Ms. Collins thought that Respondent's remarks referred to underwear, whereas the discussion between Ms. Collins and the other female students was describing the fashion of wearing silk boxers as outerwear. While Ms. Collins found Respondent's remarks about silk boxers to be inappropriate, she was not offended by his comments. Respondent touched Ms. Collins several times in class. On one occasion, while she was at her desk, Respondent came up behind her and put his arm around her shoulder in such a manner that his fingertips were just above her breasts. There were other occasions when Respondent hugged Ms. Collins and, as she describes it, "You know, just kind of gave you the chill sometimes". Ms. Collins further describes the hugs as "real tight, the kind that a boyfriend would hug you, not like a friend would pat you on the back or something". This made her feel uncomfortable. On another occasion, Respondent put his arm around Ms. Collins in such a manner that he touched her breasts. When Respondent hugged Ms. Collins, it made her feel intimidated and uncomfortable. Ms. Collins observed Respondent hug other girls in class on a frequent basis. When Respondent touched Ms. Dixon, Ms. Williams and Ms. Collins, they did not orally express their displeasure. In some instances they did pull away from the contact. Margarita Canelles was a student in Respondent's history class in the school year 1992-93 with Ms. Dixon, Ms. Williams, and Ms. Collins. Respondent's remarks in class did not make Ms. Canelles feel awkward, and she did not consider Respondent's remarks to be inappropriate. Ms. Canelles experienced and saw other students experience the Respondent put his hand on their shoulder. These events did not make Ms. Canelles feel awkward or embarrassed. Ms. Canelles heard the Respondent make remarks to the affect that students were relatively good looking or pretty or beautiful. When this happened she perceived those remarks as compliments. Ms. Canelles heard Respondent talking about subjects in history in the context of women and sex which Ms. Canelles considered to be presented in a joking manner. She did not deem Respondent's remarks to be inappropriate. Respondent's remarks heard by Ms. Canelles included a discussion of women's breasts. She did not consider those remarks to be in bad taste and they did not make her feel uncomfortable. Ms. Canelles saw Respondent use hand gestures to describe women's breasts. Bryan Beede was another student in the 1992-93 history class that has been described. Mr. Beede heard Respondent refer to women's breasts and he considered those remarks inappropriate. Mr. Beede saw the Respondent use hand gestures to describe how large women's breasts were. Mr. Beede heard Respondent say that some girls were pretty and that Respondent wished he was younger so that he could date those girls. Mr. Beede saw Respondent touch students in the class on the shoulders, back and hair. He considered these acts to be friendly gestures. Jason Paul Roberts was a student in the aforementioned history class in the school year 1992-93. Mr. Roberts saw Respondent give students what he considered to be friendly hugs that were not obscene. These hugs were given to girls. Mr. Roberts saw the Respondent give male students hand shakes in class. Mr. Roberts never heard Respondent say anything in class that Mr. Roberts considered to be inappropriate. Respondent describes his acts of physical contact with the students and comments about the appearance of students as originating with his personal background and experiences in life. In context, his explanation is to the effect that what he was trying to do by these actions was to encourage his students. Nonetheless, Respondent's conduct in the school year 1992-93 was contrary to the warnings which his principal had given him in March, 1991. His physical contact with Ms. Dixon, Ms. Williams and Ms. Collins, his attempt to arrange a liaison with Ms. Williams, his remarks about women's breasts, accompanied by gestures and his discussion of silk boxers constituted unacceptable conduct, notwithstanding Respondent's background and basic motives in dealing with his responsibilities as an educator. Dr. Epting was accepted as an expert entitled to state an opinion concerning an educator's loss of effectiveness as a teacher based upon certain conduct. Dr. Epting's opinion that Respondent lost his effectiveness by placing his arm around Ms. Dixon and touching her breasts is accepted. Dr. Epting's opinion that Respondent lost his effectiveness in describing a woman's breast pressed against Respondent's chest is accepted. Dr. Epting's opinion that Respondent lost his effectiveness by placing his arm around Ms. Dixon and putting his hand on her "butt" is accepted. Dr. Epting's opinion that Respondent lost his effectiveness in making a hand gesture to describe the size of a woman's breast is accepted. Dr. Epting's opinion that Respondent lost his effectiveness by yelling at Ms. Edgecombe in a threatening manner in the presence of students is accepted. Ms. Ann McGuire Edgecombe was a social studies department chairman at Mandarin High School in the school year 1991-92. Respondent was a teacher in that department. In March, 1992, Ms. Edgecombe met with Warren Tracey at the main office of Mandarin High School. Warren Tracey was the supervisor of social studies education for Duval County Schools. While the meeting was taking place Respondent came into the office and proceeded to tell Mr. Tracey how much Respondent disliked Ms. Edgecombe's leadership of the Mandarin High Social Studies Department. Respondent said that he did not believe that Ms. Edgecombe was sensitive to Respondent's needs and the needs of the other members of the department based upon the fact that that meeting was being held that day without including Respondent, who is an African American, or any other African Americans who were teachers in that department. Respondent made his remarks in a very raised voice. Other persons who were nearby while Respondent made his remarks were secretaries in the administrative offices of the high school. While Respondent was commenting he was only two feet away from Ms. Edgecombe. The incident in March made Ms. Edgecombe feel humiliated and she was resentful that her professional judgement had been called into question. In some respect Ms. Edgecombe felt violated. The reason for Mr. Tracey's attendance at this meeting in March, 1992 at Mandarin High was in association with a magnet school program. It was not a meeting which involved the recruitment of teachers for the magnet school program at the high school. Another encounter took place between Ms. Edgecombe and Respondent on June 2, 1992. Ms. Edgecombe was on the steps adjacent to the courtyard area at Mandarin High School on that afternoon. This encounter took place a short time before school was out. While Ms. Edgecombe was selling candy for the afternoon bus shift, Respondent walked by, then turned around, came back and began in a very agitated manner to talk about Respondent's perception that Ms. Edgecombe had "docked" Respondent for a day's pay. In particular Respondent indicated that a day of his personal leave or sick leave had been taken and that Ms. Edgecombe was at fault. Ms. Edgecombe was not responsible for Respondent's pay as part of her duties at Mandarin High School. In this situation Respondent's voice was loud and later he began to scream at Ms. Edgecombe that Ms. Edgecombe, "should stay out of his business and stay away from him." Respondent described Ms. Edgecombe as a white racist. Respondent kept extending his arm and pointing his finger toward Ms. Edgecombe's face in a jabbing motion. Most of the persons who observed this situation were students. Ms. Edgecombe felt that the encounter in June, 1992, subjected her to total public embarrassment. She felt angry and frustrated that she had suffered the experience and she was incredulous that a fellow professional would do this to her. She did not attach a great deal of significance to Respondent's allegation that Ms. Edgecombe was a racist. Later, on June 2, 1992, while in the vicinity of the administrative offices Respondent approached Ms. Edgecombe again and began to yell and make the same remarks to Ms. Edgecombe as before, while proceeding in her direction at a very rapid pace. This frightened Ms. Edgecombe. Related to the June 2, 1992 encounter, Ms. Edgecombe was aware that the Respondent had not been at school on the previous school day. Ms. Edgecombe met with Dr. Epting's secretary about Respondent's attendance on the Friday, which was the previous school day to June 2, 1992. Ms. Edgecombe was told that Respondent would be missing part of Friday, the afternoon session. Ms. Edgecombe wanted to know who the substitute teacher would be and asked the secretary to Dr. Epting if it would be necessary for Ms. Edgecombe to meet with the substitute. Ms. Edgecombe was told that Respondent was getting his classes covered by other members of the social studies department or other members of the faculty. Ms. Edgecombe realized that the reason for Respondent's absence had something to do with Respondent's mother's death earlier in the week. On the Friday before June 2, 1992, Respondent left school early to arrange for his mother's funeral. Arrangements to obtain substitute teachers were coordinated through the principal's office. Under these circumstances the secretary to the principal asked Ms. Edgecombe to check with the teachers who were covering Respondent's classes on the Friday before June 2, 1992, and to remind those substitutes that they needed to go to Respondent's classroom and make sure the kids were there and follow whatever lesson plans Respondent had left. The arrangement for Respondent to be absent on Friday did not require Ms. Edgecombe's approval. Nonetheless, Ms. Edgecombe had a normal procedure for checking with Dr. Epting's secretary to ascertain whether a member of the social studies faculty would be absent. Respondent apologized to Ms. Edgecombe for the events that took place on June 2, 1992. Respondent's explanations concerning his criticisms of Ms. Edgecombe in performing her duties as department chairperson do not excuse his conduct in March, 1992. His conduct in June, 1992, while inappropriate is mitigated by the circumstances related to his mother's death.
Recommendation Based upon the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered finding the Respondent in violation of Counts 1 through 7 in the administrative complaint and suspending Respondent's teaching certificate for a period of one year. DONE AND ENTERED this 27th day of September, 1994, in Tallahassee, Florida. CHARLES C. ADAMS 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 27th day of September, 1994. APPENDIX CASE NO. 93-4857 The following discussion is given concerning the proposed findings of fact by the parties: Petitioner's Facts: Paragraphs 1-16 are subordinate to facts found. Paragraph 17 is not necessary to the resolution of the dispute. Paragraphs 18 through 20 are rejected. Paragraphs 21 through 23 are subordinate to facts found. Paragraph 24 is rejected in its suggestion that the discussion of prostitutes and prostitution in the class lecture was inappropriate. Paragraphs 25 through 31 are subordinate to facts found. The first sentence to Paragraph 32 is not necessary to the resolution of the dispute. The last sentence to Paragraph 32 is subordinate to facts found. Paragraphs 33 through 44 are subordinate to facts found. Paragraphs 45 and 46 are not necessary to the resolution of the dispute. Paragraph 47 is subordinate to facts found. Paragraphs 48 through 50 are not necessary to the resolution of the dispute. Paragraph 51 is subordinate to facts found. Paragraph 52 is not necessary to the resolution of the dispute. Paragraphs 53 through 62 are subordinate to facts found. Paragraph 63 is not necessary to the resolution of the dispute. Paragraphs 64 through 70 are subordinate to facts found. Paragraph 71 is not necessary to the resolution of the dispute. Respondent's Facts: Paragraphs 1 through 5 are subordinate to facts found. Paragraph 6 is contrary to facts found. Paragraphs 7 and 8 are not necessary to the resolution of the dispute. Paragraph 9 is rejected in its suggestion that failure to receive complaints excuses Respondent's conduct. Paragraph 10 through 13 are subordinate to facts found. Paragraphs 14 and 15 constitute legal argument. Paragraph 16 is subordinate to facts found. Paragraph 17 is contrary to facts found. Paragraphs 18 and 19 are subordinate to facts found. Paragraph 20 constitutes legal argument. Paragraph 21 is rejected in any suggestion that Respondent is not responsible for the conduct which led to violations of statutes and rules. His basic standing as a teacher has been taken into consideration in the recommended penalty. Paragraph 22 is subordinate to facts found. Paragraphs 23 through 25, while this information is acknowledged it does not excuse Respondent's conduct directed to Ms. Edgecombe. Paragraphs 26 and 27 are subordinate to facts found. Paragraph 28 is rejected. Paragraphs 29 through 37 are subordinate to facts found. Paragraph 38 is not necessary to the resolution of the dispute. Paragraph 39 has been acknowledged in the recommended order. COPIES FURNISHED: Robert J. Boyd, Esquire Suite G 2121 Killearney Way Tallahassee, FL 32308 David A. Hertz, Esquire Duval Teachers Union 1601 Atlantic Boulevard Jacksonville, FL 32207 Karen Barr Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, FL 32399-0400 Jerry Moore, Program Director Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, FL 32399-0400
The Issue The issue in this case is whether the Petitioner is entitled to a passing grade on the November, 1987, Chiropractic (Proprietary Drug) licensure examination. The Petitioner challenged two questions on that examination, but at the hearing presented evidence regarding only one of the challenged questions, namely, question 29. The Petitioner testified on his own behalf, but did not call any other witnesses. The Petitioner also presented copies of pages from several published reference books. The parties stipulated that official recognition of those pages could be taken. The Petitioner also offered other documents which were rejected as exhibits and are not included in the record. The Respondent presented the testimony of one witness, an expert in the fields of pharmacy and pharmacology. The Respondent also offered several exhibits which were received in evidence. Following the hearing, the parties were allowed until January 9, 1989, within which to file their proposed recommended orders. The Petitioner filed a timely proposed recommended order, the factual aspects of which are addressed in the appendix to this recommended order. The Respondent did not file a proposed recommended order.
Findings Of Fact Based on the proceedings at the formal hearing in this case, I make the following findings of fact. In November of 1987, the Petitioner took the chiropractic licensure examination. The Petitioner has been assigned a score of 73.3 on the proprietary drug portion of that examination. A score of 75 is the minimum passing score on the proprietary drug portion of the examination. If the Petitioner is given credit for one additional question, he will be entitled to a passing score on the subject portion of the examination. The Petitioner was not given credit for his answer choice on question number 29. He chose answer B. The Respondent contends that the only correct answer choice is answer A. The issue of whether the Petitioner is entitled to credit for his answer choice on question number 29 turns on whether use of an inhalant containing epinephrine is seriously contraindicated by both of the following conditions: angina pectoris and pregnancy. The use of such an inhalant is seriously contraindicated by the condition of angina pectoris. Epinephrine should never be administered to a patient who suffers from angina pectoris. The use of such an inhalant is not seriously contraindicated by the condition of pregnancy. An epinephrine based inhalant should be used with caution during pregnancy, but the condition of pregnancy does not contraindicate the use of such an inhalant. The Petitioner's choice of answer B is an incorrect choice, because the condition of pregnancy does not seriously contraindicate the use of a inhalant containing epinephrine. Therefore, the Petitioner is not entitled to credit for his answer to question number 29.
Recommendation Based on all of the foregoing, it is recommended that a final order be issued assigning to the Petitioner a final grade of 73.3 and concluding that the Petitioner has failed the subject examination. DONE AND ENTERED this 18th day of January, 1989, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2900 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4011 The following are my specific rulings on all proposed findings of fact submitted by all of the parties. Findings proposed by Petitioner: The Petitioner's proposed recommended order consists of four unnumbered paragraphs, each of which is more in the nature of argument than in the nature of proposed findings of fact. Nevertheless, to the extent those paragraphs assert or imply factual matters, they are addressed as follows: First Paragraph: Rejected as contrary to the greater weight of the evidence. Second Paragraph: Rejected as contrary to the greater weight of the evidence. Angina pectoris is the only correct answer. Third Paragraph: Rejected as contrary to the greater weight of the evidence. Fourth Paragraph: Rejected as constituting a conclusion which is contrary to the greater weight of the evidence. Findings proposed by Respondent: (No findings were proposed by Respondent.) COPIES FURNISHED: James E. Marino, D.C., pro se 210 South Street Daytona Beach, Florida 32014 William A. Leffler, III, Esquire Staff Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Pat Guilford, Executive Director Board of Chiropractic Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Kenneth Easley, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Petitioner graduated from high school in the People's Republic of China in 1972. She thereafter worked for a short time in a factory that manufactured Chinese medicines as a foreman. She became interested in Chinese medicine and enrolled in Kenchow Chinese Medical College, a nighttime professional university. She studied chemistry, biochemistry, and Chinese medicine. As a part of this program, she studied acupuncture meridians and points. For a full year, she spent two hours per day in classroom studies directly related to acupuncture and two hours practicing acupuncture as an apprentice. Thereafter, from 1973 until 1980, she worked as an acupuncturist for four hours per day, six days per week. She worked at a Chinese medicine industrial research center. In addition to her work with patients as an acupuncturist, she was involved in field studies regarding herbs and Chinese medicines and in the recording of statistics and research data. During this same time, the Petitioner enrolled in a correspondence course at Western Pacific College in Hong Kong. This program included courses in the basic theory of Chinese medicine, including courses specifically dealing with the theory and practice of acupuncture. The Petitioner enrolled at Western Pacific College so that she could receive certification as an acupuncturist. She already had completed similar work at Kenchow, and she was able to complete the course work by devoting approximately two hours per week to it. She received a certification from Western Pacific College that she completed the acupuncture course. The certification is dated January 20, 1980. In January, 1981, Petitioner moved to the United States. Since May, 1981, she has worked under the supervision of physicians performing acupuncture treatments in Volusia County, Florida. Petitioner appears to have sufficient education and experience to practice as an acupuncturist. The Department of Professional Regulation has not approved any programs of education in acupuncture or any apprenticeship programs in acupuncture. There is insufficient evidence in the record in this matter from which it could be determined that the programs offered at either Kenchow Chinese Medical College or Western Pacific College should be approved by the Department. Inquiries directed to the schools by the Department have not been answered, and the Petitioner has been unable to obtain transcripts of her course work. It cannot be determined whether anyone in any of the clinical portions of the educational programs attended by Petitioner were certified acupuncturists. The Department of Professional Regulation has not approved any apprenticeship programs for the practice of acupuncture. While it appears that Petitioner has an ample theoretical and practical background as an acupuncturist, it does not appear that prior to her coming to the United States she was ever supervised by a person who is licensed under Chapters 458, 459, or 468, Florida Statutes. Indeed, since all of her experience was in China, it is extremely unlikely that she was supervised by any such person. Petitioner has been practicing as an acupuncturist since May, 1981, under supervision as required under Chapters 458 and 459, Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby, RECOMMENDED: That a final order be entered denying the application of Lucy Wei-Nor Yu for licensure as an acupuncturist in Florida. RECOMMENDED this 9th day of March, 1982, in Tallahassee, Florida. G. STEVEN PFEIFFER Assistant Director 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 9th day of March, 1982. COPIES FURNISHED: Drucilla E. Bell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Ms. Lucy Wei-Nor Yu 1360 Ridgewood Avenue Holly Hill, Florida 32017 Mr. Samuel R. Shorstein Secretary, Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Kuan-Chu Kuo's application to take the acupuncture examination should be granted or denied.
Findings Of Fact On August 31, 1981, Applicant applied to take the state acupuncture examination administered by the Department. She sought to qualify by reason of her education, indicating that she attended Shanghai Medical College, Shanghai, China, from 1944 to 1950; and that she received her acupuncture education at the Chinese Academy of Medical Science of Jsinan, Shandung, China. (R-1, P-1.) To qualify by reason of education, an applicant must submit a certificate of the dean or director of the acupuncture school which granted the degree. In satisfaction of that requirement, Applicant submitted a certificate, under seal, of the Shanghai Medical College, dated August 11, 1979, which translated under oath reads: Kuo Kuan-Chu, born in Fukien, age 53, was graduated from Shanghai Medical College (6 years curriculum) in 1950. She was with the Shanghai Medical College from Septem- ber 1944 to July 1950. (R-1, P-2.) At Shanghai Medical College from 1944 to 1950, Applicant successfully completed a curriculum including such courses as anatomy, biochemistry, physics, acupuncture, Chinese medicine, surgery, pediatrics, internal medicine, radiology, obstetrics/gynecology, opthalmology, neurology, dermatology, physiology, microbiology, pathology, gross anatomy, epidemiology, and pharmacology. She attended classes six-to-eight hours a day during the first four years; during the last two years of study, she worked in a hospital practicing Chinese medicine, including acupuncture, under the supervision of a resident physician. (Testimony of Kuan-Chu Kuo; P-8.) From 1960 to 1964, she studied at the Academy of Medical Science of Jsinan in Shandung, China. During that five-year program, she investigated the use of acupuncture to treat complications from radiotherapy. She authored several chapters in a textbook on practical gynecology. (Testimony of Kuan-Chu Kuo; R-1.) On February 10, 1982, Applicant supplemented her application by submitting a Certification, dated November 23, 1981, from the president of the Academy of Medical Science of Jsinan. The Certificate states: Dr. Kuo Kuan-Chu had acupuncture education at Jsinan Hospital from 1960 to 1964. She had fulfilled all the Chinese medicine and acupuncture courses and completed her clinical experiences, a thesis was published in Jsinan medical journals. (R-1.) Applicant has been certified by the Educational Commission for Foreign Medical Graduates as qualified to take an examination which would qualify her to take the Florida medical board exam. To obtain such certification, she was required to show that she completed at least four credit-years at a medical school listed in the "World Directory of Medical Schools." (Testimony of Kuan- Chu Kuo; P-5.) In 1979, Applicant was invited to the United States to observe the operations of the University of Miami's Department of Obstetrics and Gynecology. (Testimony of Kuan-Chu Kuo.) According to Jun Wu Xue, M.D., a visiting scholar from China, Shanghai Medical College is one of the most advanced colleges of higher learning in China. He testified that a course of "Medicine of Motherland," including Chinese traditional medicine and acupuncture, is taught at Chinese medical colleges. (Testimony of Jun Wu Xue.) But, Applicant indicated on her application that she received her acupuncture education at the Academy of Medical Science of Jsinan. No detailed information was presented on the courses at the academy, its faculty, and its current accreditation status. On September 22, 1981, the Department wrote Applicant requesting, among other things, an official transcript from her medical school. It relied on Rule 21-12.03, Florida Administrative Code, as providing authority for its request. Chapter 21-12 was filed with the Department of State on September 18, 1981. Applicant has been unable to supply the requested transcript because she attended medical school before the Chinese civil war. Institutional records, such as those kept at medical schools, were lost or destroyed by the war. (Testimony of Kuan-Chu Kuo; R-1.) On September 22, 1981, the Department also wrote the Chinese Academy of Medical Science of Jsinan and asked for their latest catalog of courses and their description, a list of their current faculty members and their curriculum vitae, the name and location of their educational and/or governmental accrediting agency, a copy of their latest accrediting report, and a clearly defined course of study for acupuncture. This request for documentation was made pursuant to the procedure prescribed in Rule 21-12.08 a new rule adopted for evaluating and approving acupuncture schools. As of the date of hearing, the academy had not responded to the Department's request. (R-1.)
Recommendation Based on the foregoing, it is RECOMMENDED: That the application of Kuan-Chu Kuo to take the acupuncture examination be denied. If and when the Department approves the acupuncture school attended by Applicant, she should be allowed to take the examination without further delay. DONE AND RECOMMENDED this 23rd day of March, 1982, in Tallahassee, Florida. R. L. CALEEN, JR. 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 23rd day of March, 1982.
Findings Of Fact Petitioner took the podiatry licensure examination administered by the Respondent in July, 1989, receiving a grade of 66.9%, with 241 correct answers. A score of 75%, with 270 correct answers, is required to pass the examination for licensure. This podiatry examination was developed by the Bureau of Examination Services in conjunction with consultants who served as "item writers", and Florida licensed podiatrists. Five Florida licensed podiatrists selected items written by the various consultants from a bank of questions available for the 1989 examination. Competent substantial evidence was not introduced on behalf of the Petitioner to establish that the examination was in any way flawed in its preparation or method of selecting the actual questions used on this exam. There is a lack of competent substantial evidence in the record to establish that the grades which the Petitioner received on the July, 1989, podiatry licensure examination were incorrect, unfair, or invalid, or that the examination, and subsequent review session, were administered in an arbitrary or capricious manner.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing the Petitioner's challenge to the grades he received on the July, 1989, podiatry licensure examination. RECOMMENDED this 7th day of May, 1991 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 7th day of May, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-2803 Despite waiting an additional seven days until April 25, 1991, as requested by counsel for the Petitioner in his letter filed on April 19, 1991, no proposed recommended order was filed on behalf of the Petitioner. Rulings on the Respondent's Proposed Findings of Fact: Adopted in Finding 1. Adopted in Findings 2 and 3. COPIES FURNISHED: Melvyn G. Greenspahn, Esquire 3550 Biscayne Boulevard Suite 404 Miami, FL 33137 Vytas J. Urba, Esquire Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, Esquire Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Patricia Guilford Executive Director Board of Podiatry 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue The issue is whether Respondent, Jian Deng Bao, d/b/a China Gardens Restaurant ("China Gardens") denied Petitioner full and equal enjoyment of the goods and services offered at its place of public accommodation, in violation of section 760.08, Florida Statutes (2011).1/
Findings Of Fact Petitioner, Tracie Inman, is deaf and blind. She uses a service dog to assist with her mobility. She is a resident of Duval County. China Gardens is a restaurant operating at 13740 Beach Boulevard, #112, Jacksonville, Florida 32224. Mrs. Inman is married to Kevin Inman. They have a daughter, Christina, who is of middle school age. Prior to January 18, 2011, the Inman family had dined at China Gardens at least ten times over the past few years. On January 18, 2011, the Inman family went to China Gardens for dinner. On this occasion Mrs. Inman was accompanied, for the first time at China Gardens, by her service dog. As the Inmans entered the restaurant, they were met by Hang Ping Bao, a female employee of the restaurant. Ms. Bao repeatedly stated, "No dog. No dog allowed." Mr. Inman attempted to explain to Ms. Bao that the restaurant was required by law to allow his wife to enter with her service dog. He showed Ms. Bao a "Leader Dog Card" explaining Ms. Inman's right to enter places of public accommodation with her dog. Ms. Bao nonetheless continued to refuse to allow the Inmans to enter the restaurant. She told them that they could order food to take out but they would not be seated in the restaurant. Other customers were seated and eating in the restaurant at the time the Inmans were denied entrance. The family walked out of the restaurant. From the China Gardens parking lot, Mr. Inman phoned the non-emergency line of the JSO to report the incident and request assistance. The dispatcher who answered the call was unaware that denying service in a place of public accommodation based on the presence of a service dog is a criminal offense under section 413.08(4), Florida Statutes. Because she believed the incident described by Mr. Inman constituted only a civil matter, the dispatcher refused to send an officer to assist. Mr. Inman later spoke with the Florida Department of Law Enforcement ("FDLE") to confirm his understanding of the law. The FDLE representative gave Mr. Inman the statutory citations to establish that the incident at China Gardens was indeed a matter for the police. On January 19, 2011, Mr. Inman again phoned the JSO. This time the dispatcher understood the situation and agreed to send an officer to meet the Inmans at China Gardens to follow up on their complaint. Officer N.S. Eddy responded to the call and filed a police report, which was admitted into evidence. Officer Eddy testified that Ms. Bao admitted to him that she had refused to allow the family to enter the restaurant with the service dog. Ms. Bao explained that she was unaware that the law required her to allow entrance to persons with service dogs. She assured Officer Eddy that China Gardens would comply with the law in the future. No criminal prosecution was brought against China Gardens. At the hearing, Mrs. Inman testified that she felt humiliated by the incident on January 18, 2011. Other patrons in the restaurant witnessed the confrontation with Ms. Bao, which caused Mrs. Inman great embarrassment. Mrs. Inman testified that her family has not returned to China Gardens since the incident, and that she is fearful of going into any restaurant with which she is not already familiar.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order: Finding that Respondent Jian Deng Bao, d/b/a China Gardens Restaurant, committed an act of public accommodations discrimination against Petitioner Tracie Inman; Prohibiting any future acts of discrimination by Respondent; and Awarding Petitioner her costs and a reasonable attorney's fee. DONE AND ENTERED this 16th day of February, 2012, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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, 2012.
Findings Of Fact Petitioner William Huang received training in acupuncture at the Chinese Acupuncture Science Research Foundation in Taiwan, China, and has practiced acupuncture for ten years, seven and a half of which have been in Florida. In August of 1981, petitioner submitted to the Department of Professional Regulation his Application for Acupuncture Examination. The Application form requests the applicant to check one of two alternative methods of qualifying for the examination: by education or by Florida apprenticeship or experience. Petitioner checked the box for "by Florida apprenticeship or experience." As of the dates of the hearing in this proceeding, petitioner had not been notified by the DPR as to whether or not he had been approved as qualified to take the examination. The examination is tentatively scheduled to occur on December 18 and 19, 1981. It was the opinion of Mr. Huang that only ten percent of the practicing acupuncturists today utilize the traditional Oriental method of diagnosis. One of the challenged rules, Rule 21-12.06(4)(a), assigns a thirty-five percent weight to the diagnostic techniques and procedures portion of the practical examination. Prior to 1980, there were no statutes or promulgated rules specifically relating to or governing the practice of acupuncture in Florida. While a rule had never been promulgated with respect to the field of acupuncture, the Florida Board of Medical Examiners had taken the official position that acupuncture is the practice of medicine. Prior to October of 1974, it was this Board's position that the performance of acupuncture should only be done by licensed medical doctors and doctors of osteopathy. Believing that legislation was imminent to allow nonlicensed persons skilled in acupuncture to perform under the direct and responsible supervision of licensed M.D.'s and D.O.'s, the Board of Medical Examiners altered its policy to reflect the same. By memorandum dated October 8,1 974, the Board issued its "Statement on Acupuncture" to be as follows: . . . to allow skilled unlicensed persons to perform acupuncture provided this is done under the responsible and direct supervision of licensed M.D.'s. This means that the non-licensed person who performs acupuncture is employed in the office of the licensed M.D. and is working in the office of the licensed M.D. and the licensed M.D. should be on the premises when acupuncture is performed. This is analogous to the Physician's Assistant who only functions under the responsible supervision of his employing physician. This does not mean that a licensed M.D. should put nonlicensed personnel out in satellite offices away from his main office performing acupuncture. A licensed M.D. should be in each office in which acupuncture is being performed. It must be remembered that the licensed M.D. is responsible for the acts and performances of any unlicensed persons within his office and in his employ regardless of the tasks or procedures performed by the unlicensed person and; therefore, this Board holds the licensed M.D. responsible for seeing that the intent of this ruling on the performance of acupuncture is carried out. . . . Effective October 1, 1980, the practice of acupuncture became specifically regulated by the enactment of Chapter 80-375, Laws of Florida. This was codified as Chapter 468, Part VIII, Florida Statutes (1980), and was amended by Chapter 81-227, Laws of Florida, effective July 2, 1981. In order to become certified to practice acupuncture under the new statutes, the applicant must furnish satisfactory evidence to the DPR that he has either: Completed a two-year program of education in acupuncture in a school or college approved by the Department; or Completed two years in an apprenticeship program . . .; provided that prior to July 1, 1981, a full-time and continuous practice of acupuncture under Chapters 458 or 459 may be substituted on an equivalent basis for all or part of the two-year apprenticeship program approved by the Department. and he must past an examination administered by the Department. Section 468.323(2), Laws of Florida. There being no Board of Acupuncturists established yet, the administration and implementation of Chapter 468 relating to acupuncture is presently being performed by the respondent's Division of Professions. Currently, that office conducts an initial review of the applications to qualify for the acupuncture examination and then the respondent's Office of Investigative Services verifies the information submitted on the application regarding the supervision of the applicant by a licensed physician and the duration thereof. This function was performed by the Office of Investigative Services by requesting the physician named on the application to sign a sworn affidavit that he or she holds a current active Florida license and that From 19 through 1981, the doctor personally knows that the applicant rendered acupuncture treatments to patients and all of these acupuncture treatments were administered under the direct supervision and control of the above-named licensed doctor. Noting that there had been confusion on the part of supervising physicians concerning the term "direct supervision," the investigators performing the function of obtaining affidavits and verifying signatures were instructed by memorandum dated September 24, 1981, as follows: It is necessary that the supervising physician for the purpose of clarification and understanding be informed that as a minimum, direct supervision means that the non-licensed person who performs acupuncture is employed by the licensed M.D. and is working in the office of the licensed M.D. and the licensed M.D. should be on the premises when acupuncture is performed. A licensed M.D. should be in each office in which acupuncture is performed. For the December 1981 acupuncture examination, the respondent received approximately 210 applications. About 125 applicants were determined to have not met the qualifications. At the time of review of these applicants and as of the time of the hearing in this matter, DPR had not yet approved any schools or colleges with programs of education in acupuncture, nor had the Department made a determination that any specific school or college met the criteria for approval of schools listed in its Rule 21-12.08, Florida Administrative Code. Of the some 41 applicants who attempted to qualify by two-years of experience under the supervision of a licensed physician, some 22 applicants have been approved as qualified to take the examination. Those were approved by the respondent on the basis of a completed, verified application form and the affidavit from the licensed Florida physician.
Recommendation Based on the findings of fact and conclusions of law recited herein, it is ORDERED that the petitioner has failed to demonstrate that Rules 21-12.02(2)(b), 21-12.05 or 21.12.06, Florida Administrative Code, constitute the invalid exercises of delegated authority or that the challenged affidavit constitutes a "rule" within the meaning of the Administrative Procedure Act. Accordingly, the petition seeking an administrative determination of those rules and affidavit is DISMISSED. DONE AND ENTERED this 11th day of December 1981, in Tallahassee, Florida. DIANE D. TREMOR 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 11th day of December 1981. COPIES FURNISHED: R. Jeremy Solomon, Esquire Booth & Conner Building A 325 John Knox Road Tallahassee, Florida 32303 Salvatore Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Samuel Shorstein, Secretary Department of Professional Regulation Old Courthouse Squire Building 130 North Monroe Street Tallahassee, Florida 32301 Liz Cloud, Bureau Chief Administrative Code Section Department of State 1802 The Capitol Tallahassee, Florida 32301 Michael A. Glean Box 3666 St. Augustine, Florida 32084 and Box 28306 Atlanta, Georgia 30328
