Martuccio v. Department of Professional Regulation, Bd. of Optometry

• Citation: 622 So.2d 607
• Decision Date: 12 August 1993
• Docket Number: No. 92-1535,92-1535
• Parties: 18 Fla. L. Week. D1788 George MARTUCCIO, O.D., Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF OPTOMETRY, Appellee.
• Court: Court of Appeal of Florida (US)

Page 607

622 So.2d 607

18 Fla. L. Week. D1788

George MARTUCCIO, O.D., Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF OPTOMETRY, Appellee.

No. 92-1535.

District Court of Appeal of Florida First District.

Aug. 12, 1993.

Kenneth G. Oertel of Oertel, Hoffman, Fernandez & Cole, Tallahassee, for appellant.

Kathryn L. Kazprzak, Dept. of Professional Regulation, Tallahassee, for appellee.

KAHN, Judge.

Appellant Dr. George Martuccio has sought licensure as a Florida optometrist. When he received a lower than passing grade on the clinical portion of the required licensing examination, Dr. Martuccio petitioned for a formal hearing pursuant to section 120.57, Florida Statutes. After an administrative hearing, the hearing officer assigned by the Division of Administrative Hearings recommended that the Board of Optometry (Board) issue a final order finding that Dr. Martuccio achieved a passing score on the examination. The Board, however, declined the recommendation, concluding that Dr. Martuccio did not achieve a passing score. Because the Board rejected findings of fact that were supported by competent substantial evidence, we reverse and direct that a final order be entered pursuant to the recommendation of the hearing officer.

Dr. Martuccio is a graduate of a four-year course of study at the Ohio State University College of Optometry. Prior to seeking Florida licensure he qualified to practice optometry in Ohio. When Martuccio took the 1989 optometry examination in Florida, he received a passing grade on the written portion of the examination, but not on the clinical portion. The passing grade on the written examination remained valid when he sat in 1990 to be re-examined. Therefore the 1990 examination consisted only of the clinical portion. The clinical portion of the examination is divided into two sections, each involving a series of procedures performed by the candidate on subjects who serve as "patients." On the first section, Dr. Martuccio received a perfect score of 48 points. On the second section, Dr. Martuccio's score totalled only 27.5 points. Since a total grade of 80 points is required for a passing score on the clinical examination, Dr. Martuccio fell 4.5 points short and accordingly received a failing grade.

Section 2 of the examination is divided into 16 different procedures. The grading is done by two examiners who are themselves practicing optometrists. If both examiners agree on a candidate's performance, the candidate either receives no credit or full credit for a particular procedure. If the examiners disagree, the candidate is given one-half of the possible points on that procedure. In the administrative proceeding Dr. Martuccio challenged the scores he received on four of the procedures in section 2 of the 1990 clinical examination. In each of these four procedures, binocular indirect opthalmoscopy, anterior biomicroscopy 4, anterior biomicroscopy 9, and gonioscopy, the examiners disagreed and thus Dr. Martuccio received only 8.5 points out of a possible 17 points.

When the case came on for hearing, the Board did not call as expert witnesses the examiners who determined that Dr. Martuccio had failed to properly perform the four procedures in question. Instead, the agency called a practicing Florida optometrist with 15 years experience. Dr. Martuccio proffered himself as an expert in optometry. Counsel for the Board objected, stating that Dr. Martuccio should not be qualified as an expert witness since he had not passed the Florida licensing examination, and argued that "just by the nature of his having licenses in [Ohio and Pennsylvania] does not qualify him as an expert in optometry." The hearing officer accepted the tender of Dr. Martuccio as an expert.

The findings of fact entered in this case clearly demonstrate that the hearing officer relied in large degree upon Dr. Martuccio's testimony.

As to the binocular indirect opthalmoscopy, the hearing officer accepted Dr. Martuccio's testimony that the subject patient remained still during the examination process and thus concluded that one of the graders made a mistake in his evaluation that this demonstration was "out of focus." On the anterior biomicroscopy 4 examination, the applicant is required to use a slit lamp to project a beam of light into the patient's eye. One grader concluded that Dr. Martuccio erroneously projected an optic section rather than a parallelpiped from the slit lamp. Dr. Martuccio testified, however, that he did not change the adjustment on the lamp which controls the width of the beam of light. Accepting this testimony, the hearing officer decided that one of the examiners, rather than Dr. Martuccio, was mistaken. For anterior biomicroscopy 9, the applicant is required to focus on vitreous strands on the anterior vitreous of the eye. In healthy patients, such vitreous strands are not present, and the anterior vitreous will appear clear when illuminated by a beam of light from the slit lamp. The examiner who failed Dr. Martuccio on this procedure observed that vitreous strands were not visible. Dr. Martuccio explained, however, that the subject patient had a healthy eye which did not have vitreous strands. The hearing officer accepted this testimony and concluded that the examiner's comment concerning vitreous strands was inappropriate, indicating he used an erroneous criterion. On the gonioscopy examination, one of the examiners commented that the structures of the eye which are examined in this procedure were out of focus. The hearing officer accepted Dr. Martuccio's testimony that the subject patient did not move, and accordingly that the structures remained in focus during the examination.

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