STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANGEL N. DIAZ-NORRMAN, )

)

Petitioner, )

)

vs. ) CASE NO. 84-0985

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case in Gainesville, Florida, on March 18, 1985, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. At the hearing the parties were represented by the following counsel:

For Petitioner: Paige M. Brock, Esquire

Druck & Hicks

Post Office Drawer 1329 Ocala, Florida 32678

For Respondent: Drucilla Bell, Esquire

Assistant General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

The primary issue in this case is whether the Petitioner should have been given a passing grade on the June 1983 Dental Mannequin examination. A secondary issue is whether the Petitioner should be permitted to take the regular State of Florida dental examination even if he is not entitled to a passing grade on the June 1983 Dental Mannequin examination.

INTRODUCTION

At the hearing the Petitioner testified on his own behalf. He did not call any other witnesses, nor did he offer any exhibits into evidence. The Respondent presented the testimony of two witnesses, Dr. Theodor Simkin, an expert in the field of dentistry and an examiner at dental examinations, and Ms. Lucinda Richards, an employee of the Department of Professional Regulation who is an expert in the field of testing and measurement. The Respondent also offered into evidence four exhibits, all of which were received without objection. During the course of the hearing the parties stated that they were

not going to file a transcript of the proceedings with the Hearing Officer. At the conclusion of the hearing the parties made oral arguments to the Hearing Officer and waived their right to file post-hearing proposed findings of fact, conclusions of law, recommended orders, and/or written briefs or memorandums of law.

FINDINGS OF FACT

On the basis of the testimony of the witnesses and the exhibits received into evidence at the hearing, I make the following findings of fact:

1. The Petitioner, Dr. Angel N. Diaz-Norrman, is a graduate of a foreign dental school. Since his graduation from dental school he has engaged in three years of postgraduate training in the field of dentistry at the University of Miami and at the University of Florida. He has also completed all requirements for a teaching fellowship in the field of general dentistry. He is currently pursuing a program on postgraduate study in the specialty of periodontics at the University of Florida. His grade point average in his periodontic studies is

   4.0 for both the didactic and the clinical portions of his studies.

   
   

2. The Petitioner has twice taken the State of Florida Dental Mannequin Examination, once in December of 1982 and once in June of 1983. He was assigned a failing grade on both of those examinations. His December 1982 grade was slightly higher than his June 1983 grade. His June 1983 grade was 2.37. The minimum passing grade is 3.00.

   
   

3. The State of Florida Dental Mannequin examination is a practical examination which tests several specified clinical skills. The examination consists of ten procedures, of which only nine are grades. Each of the nine graded procedures are graded separately. Each of the nine graded procedures on the examination is independently graded by three examiners. Each examiner assigns a grade of from 0 to 5 to the procedure and the final score for each procedure is determined by averaging the three grades given to that procedure. The final score on the entire examination is determined on the basis of a weighted average as provided in Rule 21G-2.19(1), Florida Administrative Code. 1/

   
   

4. The examiners who grade the State of Florida Dental Mannequin examination are all experienced Florida dentists who are selected by the Board of Dentistry. A person chosen as an examiner must have at least five years experience as a dentist. All persons who are selected to be examiners receive a full day of training in the examination process. They review the criteria by which each procedure is to be judged and they participate in a practice grading exercise. Proposed examiners who do not do a good job on the practice grading exercise are not selected as examiners, but are given other tasks at the examination such as serving as monitors. 2/

   
   

5. The application of the grading criteria is not a mathematically precise procedure. Although some shortcomings on the examination procedures require an automatic grade of 0, there is no mathematical formula for deducting any specific number of points or fractions of points for lesser shortcomings or deviations from an excellent procedure. Rather, the examiners use an holistic approach to the grading of each procedure.

   
   

6. During the examination each examiner is required to record the grade assigned to each procedure on a written form. Whenever an examiner assigns a

   failing score to a procedure, the examiner is required to include on the grading form written comments sufficient to justify the failing grade. The written comments do not have to include everything the examiner thought was wrong with the procedure, but must include enough to justify the failing grade. An examiner is not required to justify a passing grade.

   
   

7. When the Petitioner took the Dental Mannequin examination in June of 1983, the grades he received from each examiner on each graded procedure were as follows:

Procedure Examiner Examiner Examiner Average

procedures number 1, 2, 5, 7, 8, and 9 was a fair and reasonable grade for his performance on each of those procedures. In other words, the average grades given to the Petitioner on those six procedures were fair and accurate measures of the skills demonstrated by the Petitioner on those procedures.

1. The average grade given to Petitioner for procedure number 3 was higher than it should have been. The quality of the Petitioner's performance on procedure number 3 was such that he should have been given a grade of 1.00 instead of 2.33.

   
   

2. The average grade given to Petitioner for procedure number 4 was lower than it should have been. The quality of the Petitioner's performance on procedure number 4 was such that he should have been given a grade of 4.00, instead of 3.33.

   
   

3. The average grade given to Petitioner for procedure number 6 was lower than it should have been. The quality of the Petitioner's performance on procedure number 6 was such that he should have been given a grade of 5.00, instead of 4.33.

   
   

4. With regard to procedure number 9, the Petitioner misunderstood the instructions and prepared a "wax-up" for a cast gold bridge of a type different than that required by the instructions. Between the time of the June 1983 examination and the time of the hearing the "wax-up" prepared by the Petitioner for procedure number 9 became partially damaged while in the custody of the Respondent.

   CONCLUSIONS OF LAW

   
   

   On the basis of the foregoing findings of fact and on the applicable legal principles, I make the following conclusions of law:

   
   

5. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this case. (See, generally, Section 120.57, Florida Statutes.)

   
   

6. Section 466.006, Florida Statutes, provides, inter alia, that a person desiring to be licensed as a dentist must successfully complete certain specified examinations. Subsection (3) of Section 466.006 further provides, in pertinent part:

   
   

   (3) If an applicant is a graduate of a dental college or school not accredited in accordance with paragraph (2)(b) or of a dental college or school not approved by the board, he shall not be entitled to take the examinations required by this section to practice dentistry until he:

   * * *

   (c) Exhibits manual skills on a laboratory model pursuant to rules of the board. . . . If the applicant fails to exhibit competent clinical skills in two attempts, he shall not be entitled to take the examinations authorized in subsection (4), except that an applicant who graduated from the University of Havana before 1962 may take the exhibition of competency in manual

   skills examination an unlimited number of times.

   
   

7. In Implementation of the above-quoted statutory provision the Board of Dentistry has adopted Rule 21G-2.19, Florida Administrative Code. The rule contains detailed provisions describing the specific dental procedures which will be tested on the manual skills or "mannequin" examination. It also contains detailed provisions specifying the criteria which will be applied in the grading of the manual skills or "mannequin" examination. Additional provisions regarding the grading process are found at Rules 21G-2.13(1) and 21G- 2.17, Florida Administrative Code.

   
   

8. The June 1983 Dental Mannequin examination was administered and graded in accordance with the applicable statutory and rule provisions. The final grade given to the Petitioner for the June 1983 Dental Mannequin examination was a correct grade. 3/

   
   

9. Petitioner has argued, inter alia, that he should be afforded relief on the basis that examiner number 45 consistently gave the Petitioner lower grades than the grades given by the other two examiners. This argument fails for several reasons. First, it fails factually because examiner number 45 was not always the low grader. Further, the Petitioner has failed to prove that all of the grades given to him by examiner number 45 were incorrect or otherwise improper. The argument also fails because even if all of the grades given by examiner number 45 were to be disregarded and if the Petitioner's grades were to be based on an average of the grades given to him by the other two examiners, the Petitioner would still receive a failing grade.

10. Petitioner has argued that he should have received a higher grade on procedure number 9. One of his arguments in this regard is that there was a misunderstanding on his part as to what type of procedure he was supposed to do. While the Petitioner may very well have misunderstood the instructions, there is no proof in this record that the instructions were confusing or otherwise deficient. Thus it would appear from the record in this case that any failure of communication with regard to procedure number 9 must be attributed to the Petitioner and not to the Respondent. Accordingly, the facts in this case are insufficient to warrant a remedy such as was ordered in Alvarez v. Department of Professional Regulation, Acupuncture, 9 FLW 2240 (Fla. 1st DCA 1984).

    
    

11. With regard to procedure number 9, the Petitioner also argues that he should be given some relief on the basis of the fact that between the time of the examination in June of 1983 and the hearing on March 18, 1985, the "wax-up" he prepared was partially damaged. In this regard the Petitioner contends that the damage to the "wax-up" impaired his ability to prove his case at the hearing. It is important to note that the "wax-up" was only partially damaged. The Petitioner has been given the benefit of the doubt as to all damaged portions of the "wax-up"; i.e., it has been assumed that the Petitioner's work on the damaged portion was "outstanding." But that assumption notwithstanding, the undamaged portion of the "wax-up" demonstrates shortcomings sufficient to justify the grade of 1.00 which was given to the Petitioner on this procedure. As a final matter regarding procedure number 9, it should also be noted that even if the Petitioner were to be give a grade of 5.00 on this procedure (which there is no record basis for doing), his final grade would still be a failing grade.

    
    

12. The Petitioner has also argued, essentially on equitable grounds, that notwithstanding the statutory provisions, on the basis of his postgraduate teaching and his distinquished postgraduate academic record he should be permitted to either take the Dental Mannequin examination a third time or be admitted to take the regular dental licensure examination without being required to achieve a passing grade on the Dental Mannequin examination. This argument is indeed persuasive, because the Petitioner certainly has achieved an outstanding academic record in his postgraduate studies in this state, and those achievements constitute a very logical basis for the relief requested. Unfortunately, it is impossible to grant relief on this basis, because to do so would be to disregard a clear legislative mandate. The statutory provisions are clear; graduates of foreign dental schools must pass the Dental Mannequin examination as a prerequisite to taking the regular dental licensure examination and such graduates can only take the Dental Mannequin examination twice. As stated in Gardinier, Inc. v. Florida Dept. of Pollution Control, 300 So.2d 75 (Fla. 1st DCA 1974).

It has long been established law that a statutory agency possesses no inherent powers. Its powers are derivative only, depending upon that statute by which it is created. Its powers are limited to those granted expressly or by necessary implication, by the statute of its creation.

And as noted in Attorney General Opinion 072-330 (1972):

It is a well-settled rule of statutory construction that a legislative direction as to the manner in which a thing is to be done impliedly prohibits its being done in any other way. See Murphy v. Barnes, Fla. 1888,

3 So. 433; State v. Yeats, Fla. 1944, 19 So.2d 799. Accord: Attorney General Opinion 070-150.

Application of the above-quoted principles of law leads inescapably to the conclusion that the Department of Professional Regulation and the Board of Dentistry are without authority to deviate from the clear language of the applicable statutory provisions. 4/

RECOMMENDATION

On the basis of all of the foregoing, I recommend that the Board of Dentistry issue a final order concluding that the Petitioner's grade on the June 1983 Dental Mannequin examination is 2.37, a failing grade, and that the Petitioner is not eligible to retake the Dental Mannequin examination or to take the regular dental license examination.

DONE AND ENTERED this 4th day of April 1985 at Tallahassee, Florida.

MICHAEL M. PARRISH

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 4th day of April, 1985.

ENDNOTES

1/ The nature of the Florida Dental Mannequin examination and the manner in which it is administered and graded are described in detail in Rule 21G-2.19, Florida Administrative Code.

2/ Detailed provisions regarding the process by which examiners are chosen appear at Rule 21G-2.20, Florida Administrative Code.

3/ Even though I have found that the grades on three of the Petitioner's procedures should be changed, the net effect of the three changes is a complete set off. In other words, when the Petitioner's final grade is calculated on the basis of the grades which I have found should have been given to him, the final grade is exactly the same, 2.37.

4/ It is perhaps possible that one could successfully argue some constitutional infirmity with respect to the statutory provision limiting candidates to two attempts at the Dental Mannequin Exam, but any such arguments must be addressed to the courts and not to the statutory administrative agencies. As noted in Barr v. Watts, 70 So.2d 347 (Fla. 1953), and State ex rel. Atlantic Coast Line Railroad Co. v. State Board of Equalizers, 94 So. 681 (Fla. 1922), the "right to declare an act unconstitutional . . . cannot be exercised by the officers of the executive department under the guise of the observance of their oath of office to support the Constitution."

COPIES FURNISHED:

Paige M. Brock, Esquire Druck & Hicks

Post Office Drawer 1329 Ocala, Florida 32678

Drucilla Bell, Esquire Assistant General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Fred Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Fred Varn, Executive Director Board of Dentistry

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore Carpino, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 84-000985

Orders for Case No: 84-000985