Martuccio v. DEPT. OF PRO. REGULATION

Citations: 622 So. 2d 607; 1993 WL 303092Docket: 92-1535

Court: District Court of Appeal of Florida; August 12, 1993; Florida; State Appellate Court

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Dr. George Martuccio, seeking licensure as an optometrist in Florida, failed the clinical portion of the licensing exam after scoring 27.5 out of the required 80 points. He had previously passed the written portion and was re-examined solely on the clinical section in 1990, where he achieved a perfect score on one segment but fell short on another. Martuccio contested the scores on four specific procedures, which were graded by two examiners who disagreed, resulting in partial credit. During the administrative hearing, the Board did not call the examiners to testify but presented another optometrist instead. Martuccio was allowed to testify as an expert despite not passing the Florida exam, with the hearing officer heavily relying on his testimony, particularly regarding the assessment of one procedure that was deemed incorrectly evaluated by an examiner. The Board ultimately rejected the hearing officer's recommendation to issue a passing score based on substantial evidence; therefore, the court reversed the Board's decision and directed that a final order be issued in alignment with the hearing officer's recommendation.

The applicant, Dr. Martuccio, underwent an anterior biomicroscopy examination where one grader claimed he improperly used an optic section instead of a parallelpiped with the slit lamp. Dr. Martuccio maintained that he had not adjusted the lamp settings, leading the hearing officer to side with him and conclude that the examiner was mistaken. In a subsequent anterior biomicroscopy evaluation, the examiner noted an absence of vitreous strands, which should not be present in a healthy eye. Dr. Martuccio argued that the patient’s eye was healthy, and the hearing officer accepted this, deeming the examiner’s comments erroneous. During the gonioscopy examination, an examiner noted that the eye structures were out of focus; however, Dr. Martuccio stated that the patient did not move, which the hearing officer accepted as evidence that the structures remained in focus. Based on these findings, the hearing officer recommended Dr. Martuccio be awarded an additional 8.5 points, resulting in a passing score.

Contrarily, the Board of Optometry disagreed, asserting that Dr. Martuccio's claims were primarily self-serving and contradicted by the grading evidence. They concluded there was insufficient competent substantial evidence to support Dr. Martuccio's performance in the procedures or his proficiency with the instruments used in practice. The Board emphasized that any grading errors had not been proven to be solely due to examiner bias. Despite Dr. Martuccio’s qualifications as a licensed optometrist in Ohio and Pennsylvania, the Board found that his testimony did not constitute competent substantial evidence sufficient to overturn the examiners' assessments. The legal standard requires that an administrative agency reviewing a recommended order must not reject the hearing officer's factual findings without first determining that they lack a competent substantial evidentiary basis. This principle was reinforced by case law stating it is the hearing officer’s role to evaluate evidence, resolve conflicts, and determine credibility. The Board chose to uphold these administrative law principles in their decision.

Persons with a financial interest in litigation are permitted to testify under the Florida Evidence Code, with their interest affecting only the credibility of their testimony. Expert witnesses must be qualified through knowledge, skill, experience, training, or education, regardless of state licensure. A trial court erred in disallowing a qualified expert's testimony solely due to the absence of a Florida psychologist license. Dr. Martuccio's personal interest and lack of licensure did not invalidate his testimony, which was deemed competent substantial evidence by the hearing officer. The Board improperly rejected these findings, relying on a precedent (Robinson v. Florida Board of Dentistry) that is not applicable to the current case, as it involved a penal license suspension and the testimony was deemed suspect due to the witness's financial interest. The current case's context is significantly different, and it would be unreasonable to dismiss a witness's testimony based solely on their opposing interest. The decision is reversed and remanded for further proceedings. Judges Allen and Wolf concur.