STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MOHAMMED H. TEIMOURIJAM, )

)

Petitioner, )

)

vs. ) CASE NO. 88-3855

) BOARD OF DENTISTRY, DEPARTMENT ) OF PROFESSIONAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Tallahassee, Florida, before Robert T. Benton II, Hearing Officer of the Division of Administrative Hearings, on November 2, 1988. The parties were allowed until January 27, 1989, in which to file proposed recommended orders. Proposed findings of fact in petitioner's proposed recommended order have been adopted, in substance. Respondent filed no proposed findings of fact.

Petitioner appeared on his own behalf. Respondent appeared through counsel:

William A. Leffler, III and

E. Harper Field

130 North Monroe Street Tallahassee, Florida 3239-0650

After the Department of Professional Regulation received petitioner's letter challenging his revised final grade, it referred the matter to the Division of Administrative Hearings.

ISSUE

Whether respondent should license petitioner as a dentist, despite the results of his manual skills examination, on account of the alleged unfairness of Examiner No. 170?

FINDINGS OF FACT

1. Petitioner Mohammed Hossein Teimourijam, who has practiced dentistry for five years and once taught dentistry at the National University of Iran, took the dental manual skills examination respondent administered in November of 1987.

   
   

2. The examination consisted of nine procedures which each examinee performed on "dental mannequins." By reference to the number with which each applicant identified all of his procedures, examiners recorded their evaluations. Petitioner's Exhibit No. 1. Petitioner's original score was arrived at, as follows:

   
   

   PROCEDURE	006	154	170	AVERAGE
   1	2	2	2	2.0
   2	2	2	1	1.66
   3	2	2	1	1.66
   4	5	5	3	4.33
   5	3	3	2	2.66
   6	5	4	4	4.33
   7	2	3	3	2.66
   8	4	4	1	3.0
   9	3	3	1	2.33

   
   

   Respondent's Exhibit No. 3; Petitioner's Exhibit No. 3.

   
   

   Anonymous examiners, who did not see petitioner or any other examinee at work, began grading only after the applicants had finished the assigned procedures.

   
   

3. The Board preserved the physical product of each procedure, along with the standardized rating sheets three examiners (Nos. 006, 154 and 170, in petitioner's case), filled out in evaluating each procedure.

   
   

4. When respondent Board apprised Dr. Teimourijam that he had scored 2.71, below the 3.0 "necessary to achieve a passing status," Petitioner's Exhibit No. 3, he requested reconsideration. As a result, a consultant to respondent, who had attended the same standardization session as the original graders, reviewed the grading sheets and the procedures.

   
   

5. With respect to procedures 8 and 9, the consultant concluded either that one of the original graders' comments was not physically verifiable or that one of the original grades was indefensible. Accordingly, three new graders evaluated petitioner's procedures 8 and 9. The results of the regrading were 3,

   3 and 4 for each procedure, which brought petitioner's final grade to 2.84.

   
   

   CONCLUSIONS OF LAW

   
   

6. The courts view it "as fundamental that an applicant for a license or permit carries `the ultimate burden of persuasion' of entitlement through all proceedings, of whatever nature," until such time as final action has been taken by the agency. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778, 787 (Fla. 1st DCA 1981); Zemour, Inc., v. State Division of Beverage,

   347 So.2d 1102 (Fla. 1st DCA 1977)(lack of good moral character found "from evidence submitted by the applicant"). See generally Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

   
   

7. Petitioner has failed to prove any impropriety or unfairness in the manner in which his revised final grade was determined. Although he testified that he thought examiner No. 170 graded his work unfairly, he assigned no reason other than the low grades he received.

It is, accordingly, RECOMMENDED:

That respondent deny petitioner's application for a license to practice dentistry in Florida.

DONE AND ENTERED this 16th day of March, 1989, in Tallahassee, Florida.

ROBERT T. BENTON, II

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 16th day of March, 1989.

COPIES FURNISHED:

William A. Leffler, III and

E. Harper Field

130 North Monroe Street Tallahassee, Florida 32399-0650

Mohammed H. Teimourijam

419 North Highland Avenue Atlanta, Georgia 30307

Lawrence A. Gonzalez, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Kenneth Easley, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

William Buckhalt Executive Director

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 88-003855

Orders for Case No: 88-003855