00-000206 P. Jay Tuller vs. Department Of Health, Hearing Aid Specialists Status: Closed Recommended Order on Tuesday, July 25, 2000.

Summary: Petitioner proved that the lighting and other conditions at the examination site were substandard, and he should be permitted to retake the examination without paying another fee.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

P. JAY TULLER, )

)

Petitioner, )

)

vs. ) Case No. 00-0206

)

DEPARTMENT OF HEALTH, HEARING )

AID SPECIALISTS, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings

through its duly-designated Administrative Law Judge, Mary Clark,

conducted a formal hearing in the above-styled case on June 21,

2000, by video conference between Orlando and Tallahassee,

Florida.

For Pet itioner: P. Jay Tuller, pro se

Advanced Hearing Centers of Florida

3162 U.S. Highway 27/441

Building C, Suite C3

Fruitland Park, Florida 34731

For Respondent: Amy M. Jones, Esquire

Department of Health

Office of the General Counsel

Bin A02

2020 Capital Circle, Southeast

Tallahassee, Florida 32399-1703

STATEMENT OF THE ISSUES

Petitioner, P. Jay Tuller (Mr. Tuller), has challenged his

score on the September 1999 Hearing Aid Specialist Examination.

The issue for resolution in this proceeding is whether he is

entitled to relief in that challenge.

PRELIMINARY STATEMENT

After receiving the letter describing Mr. Tuller's

challenge, the Department of Health (agency) forwarded the case

to the Division of Administrative Hearings for conduct of an

evidentiary hearing.

At the hearing Mr. Tuller testified in his own behalf and

cross-examined the witnesses presented by the agency. Those

agency witnesses were Lee H. Skinner, a psychometrician; and Jay

Slavin, a hearing aid specialist. In addition to testimony, the

agency submitted eight exhibits which were received in evidence

as agency Exhibit Nos. 1-8. As required by Section 455.647,

Florida Statutes, Exhibit Nos. 2-5 are sealed.

On June 30, 2000, the agency filed its Proposed Recommended

Order. No transcript nor other post-hearing documents were

filed.

Findings of Fact

1. In a self-described mid-life change of careers and after

taking a 6-month training program, Mr. Tuller sat for the Florida

Department of Health, Hearing Aid Specialist Examination on

September 24 and 25, 1999.

2. A passing score of 75 wa s required for the written

practical and written theory parts of the examination. On

October 29, 1999, Mr. Tuller was sent his scores of 83 and 73.40,

respectively, on the two parts. His overall status was

designated as "failed."

3. In his challlenge Mr. Tuller contested the scoring of

several questions on the examination. In addition, he asserted

that the lighting in the examination room was poor and some of

the diagrams in the examination booklet were blurred and

illegible.

4. The written theory pa rt of the examination requires a

"best answer," not simply a "close answer" to a series of

multiple-choice questions.

5. During the course of the hearing Mr. Tuller conceded

that the agency's witnesses were correct as to the proper answer

for three of the four questions he challenged. In the fourth

question, number 146, the answer selected by the agency as

correct was taken virtually verbatim from Rule 64B6-8001(3),

Florida Administrative Code, defining the term "direct

supervision." Mr. Tuller's answer was reasonably close but not

the "best" answer. Even if he were right on this answer he would

need two more correct answers, not just one, to pass the

examination.

6. Mr. Tuller was not the only candidate who complained of

poor lighting and poor quality of printing on the examination.

Five of the 26 candidates for the September 1999, session wrote

letters to the agency expressing their dissatisfaction. Four of

those five did receive passing scores, however, and overall the

mean score on this examination was slightly higher than the mean

score for the preceeding examination in January 1999.

7. Mr. Tuller wears bifocal glasses and the blurred copies

of the examination diagrams and the high ceiling lights in the

room interfered with his being able to interpret the diagrams.

He told the test monitors about the lighting problem, as did

other candidates; he did not complain or make written comments on

the examination booklet about the quality of the diagrams as the

candidates were cautioned not to talk and he did not understand

that he could make written comments.

8. Because this was the first written test he had taken

since he was 19 years old, Mr. Tuller became nervous and

frustrated after he had trouble seeing the diagrams.

9. The copies of questions submitted by the agency at the

hearing include extremely small, blurred numbers on certain

diagrams in the examination. These are not the exact copies

viewed by the examination candidates but those copies were not

available at the hearing. The copies submitted in evidence at

the hearing are on special non-duplicating paper to assure their

confidentiality.

10. Because of the several complaints of candidates

regarding the lighting and poor copies, Lee Skinner, a

psychometrician with the Department of Health, prepared a report

for the Board of Hearing Aid Specialists. Mr. Skinner found that

the lighting was "fair" and the printing quality of supplemental

sheets that had to be copied on a smaller machine was readable.

At hearing Mr. Skinner candidly agreed that while the quality was

"acceptable" the diagrams and graphs were hard to read.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction in this proceeding pursuant to Sections 120.569 and

120.57(1), Florida Statutes.

12. Mr . Tuller has the burden of proving by a preponderance

of the evidence that his examination scoring was flawed and that

the agency acted arbitrarily. See , Harac v. Dept. of Business

and Professional Regulation , 484 So 2d. 1333, 1337 (Fla. 3rd DCA

1986); Espinoza v. Dept. of Business and Professional Regulation ,

739 So. 2d 1250 (Fla. 3rd DCA 1999). Based on the evidence of

record Mr. Tuller failed to meet that burden as to the

correctness of his responses to the questions.

13. However, as to the condition s under which the

examination was administered, Mr. Tuller proved by a

preponderance of evidence that the lighting and print quality

were poor and affected his performance.

14. Rule 64B-1.001(2)(d), Florida Administrative Code,

provides that the original examination fee paid by the applicant

shall be applied to a rescheduled examination when ". . .

problems occur which are due to the Department's inaction or

negligence." The appropriate remedy for Mr. Tuller is a free

retake of his examination rather than additional points on the

examination already taken.

RECOMMENDATION

Based on the foregoing, it is hereby

Recommended: That the agency enter its final order denying

Mr. Tuller's challenge to his examination grade on the September

1999 hearing aid specialist licensure examination but permitting

him to retake the examination without further payment of a fee.

DONE AND ENTERED this 25th day of July, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

MARY CLARK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of July, 2000.

COPIES FURNISHED:

Susan Foster, Executive Director

Board of Hearing Aid Specialists

Department of Health

4052 Bald Cypress Way

Bin A00

Tallahassee, Florida 32399-1701

Angela T. Hall, Agency Clerk

Department of Health

4052 Bald Cypress Way

Bin A02

Tallahassee, Florida 32399-1701

P. Jay Tuller

Advanced Hearing Centers of Florida

3162 U.S. Highway 27/441

Building C, Suite C3

Fruitland Park, Florida 34731

Amy M. Jones, Esquire

Department of Health

Office of the General Counsel

Bin A02

2020 Capital Circle, Southeast

Tallahassee, Florida 32399-1703

William W. Large, General Counsel

Department of Health

4052 Bald Cypress Way

Bin A00

Tallahassee, Florida 32399-1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order must be filed with the agency that will

issue the Final Order in this case.