STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ZENAIDA FALCON, )

)

Petitioner, )

)

vs. ) CASE NO. 86-4839

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

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, formal hearing in this cause was held in Miami, Florida, on October 14, 1987, before Ella Jane P. Davis, the duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: H. Robert Koltrow, Esquire

One Datran Center, Suite 502 9100 South Dadeland Boulevard Miami, Florida 33156

For Respondent: Chester G. Senf, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

ISSUE

Whether or not Petitioner may be granted a passing grade upon her Dental Mannequin Examination dated June, 1986, a precursor to further examination for licensure.

BACKGROUND AND PROCEDURE

Petitioner is a post-1962 graduate of the University of Havana (Cuba) Dental School. At the commencement of formal hearing, Petitioner raised as a constitutional challenge, the bar existing in Section 466.006, Florida Statutes, to persons in her circumstances taking the Florida Dental Board Mannequin Examination an unlimited number of times whereas similar graduates prior to 1962 are permitted unlimited examination attempts. She also raised a further challenge to the recent amendment, effective 1991, barring any examination whatsoever of unaccredited dental school graduates. These challenges were treated by the undersigned as a single motion to hold a statute unconstitutional and denied as without jurisdiction and authority.

The parties stipulated to the admission in evidence of 10 joint exhibits. Petitioner testified on her own behalf, presented the oral testimony of Lucinda

Richards, and had one exhibit admitted in evidence. Respondent presented the oral testimony of Dr. Theodor Simkin, D.D.S., and had admitted one exhibit. The transcript was duly filed and each party has timely filed post-hearing proposals, the proposed findings of fact of which have been ruled upon in the Appendix to this Recommended Order, pursuant to Section 120.59(2), Florida Statutes.

FINDINGS OF FACT

1. Petitioner, a 1978 graduate of the University of Havana, was an applicant for licensure by examination to practice dentistry in the State of Florida. As a foreign graduate of a non-accredited school, Petitioner had taken the Manual Skills, or Mannequin, portion of the examination on two previous occasions in 1982 and 1983, and failed on both occasions. After taking a remedial course, Petitioner was eligible under current law to take the examination for a third and final time.

   
   

2. Petitioner took that examination for the third time in June 1986, and received a grade of 2.74. A grade of 3.0 is considered a minimum passing grade. Petitioner filed objections to the examination results, which were reviewed by Respondent and confirmed, and this proceeding followed.

   
   

3. The Manual Skills, or Mannequin, portion of the dental examination, consists of nine procedures which are graded by three dental examiners who qualify under the requirements of Rule 21G-2.020, Florida Administrative Code. All examiners attend standardization courses, are evaluated, and are assigned randomly for the grading of applicants. In the instant case, the examiners for Petitioner were No. 6, Dr. Levy; No. 64, Dr. Robinson; and No. 150, Dr. Boyar, each of whom examined and graded all of Petitioner's nine procedures.

   
   

4. The procedures are graded in a holistic manner and not as a numeric point deduction for errors or mistakes. Each examiner assigns a grade for the procedure and must document on the portion of the grade sheet any failing grade. The examiner then assigns one of the following grades for each procedure:

   
   

   1. - Complete failure

   2. - Unacceptable dental procedure

   3. - Below minimal acceptable dental procedure

   4. - Minimally acceptable dental procedure

   5. - Better than minimally acceptable dental procedure

   6. - Outstanding dental procedure

   
   

5. Each procedure is graded by averaging the three examiners' scores to come up with a single average grade for each procedure. Procedure grades are then individually weighed and combined for an overall clinical grade, which grade must be 3.0 or above in order to achieve a passing score.

   
   

6. All scores for examiners are reported and evaluated in Report For The State of Florida Dental Manual Skills Examination, June 1986, (Joint Exhibit F).

   
   

7. At Page 3 of said Report, entitled "Histograms And Frequency Distribution", a set of graphs indicates that failing grades of "0", "1" or "2", should be given 18% of the time, and same would be considered a "realistic example of what might be considered ideal". A review of the 24 examiners assigned to the June 1986 Examination, however, further indicated that there was

   a range in the frequency of the rendering of failing grades from examiner 47, who gave a failing grade 19.4% of the time, to examiner 135, who gave a failing grade 70.7% of the time. The range for the Petitioner's three examiners, who rendered failing grades were examiner 6, 32.9% of the time; examiner 64, 51.6% of the time; and examiner 150, 29.9% of the time. All three examiners of Petitioner had given failing grades higher than the ideal curve, (51.6% to 29.9%), and all 24 examiners rendered failing grades substantially higher than the ideal curve (70.7% to 19.4%). It is Petitioner's contention that although Respondent has made efforts to standardize its examiners' techniques and grading, the admitted range for the specific examiners who rendered failing grades were from a high of 70.7% to a low of 19.4%, when the ideal rendering of such failing grades should have been only 18%, and conversely, the range for examiners who rendered passing grades, were from a low of 29.3% to a high of 80.6%, thus establishing that "standardization" of grading has not been achieved, and that the June 1986 grades assigned to Petitioner were subjective and not reasonable and fair.

   
   

8. Petitioner's contention, although correct in its arithmetic, is not sound in light of other mathematical principles enunciated by Lucinda Richards, an examination development specialist for the Department of Professional Regulation who was qualified and accepted as Petitioner's expert witness in testing and measurement. Petitioner's theory is a plausible inference but not a necessary one. It is not a necessary inference due to the holistic nature of the examination, because it cannot be ruled out that any three examiners were randomly assigned to grade those candidates who performed overly poorly or overly well, and because the examiner evaluation relied on by Petitioner is based on a very small number of evaluations and is for this single examination only and not for all examinations these examiners have done. Ms. Richards specifically testified that it was a possibility that on the June 1986 examination or any examination the three examiners assigned to Petitioner were randomly assigned to overly poor students and that Dr. Robinson, Petitioner's examiner whose failure rate was highest on this examination always does well on standardization testing and that, in fact, Dr. Robinson has deviated less than any other examiner in his several standardization tests over time. The undersigned accepts Ms. Richards' detailed factual evidence that the June 1986 Mannequin examination was conducted in accord with standard procedures and that Petitioner was not treated differently from other examination candidates. The undersigned further accepts Ms. Richards' expert opinion that the examination process is standardized and fair.

   
   

9. Moreover, Dr. Theodor Simkin's testimony does not support Petitioner's analysis. Dr. Simkin, called by Respondent, has been a licensed Florida dentist since 1950. Until the last few years he has been actively engaged in dental practice. He has also been actively engaged in the training and standardization procedures for the dental examination continuously since 1979 and has served as an examiner seventeen times. For the 1986 examination in dispute, Dr. Simkin was an examination supervisor and reviewer. He is thoroughly acquainted with all the latest and accepted techniques involving the nine procedures in which Petitioner was tested in 1986. In the course of formal hearing, Dr. Simkin examined the mannequin prepared by Petitioner during her examination. Although Respondent did not tender Dr. Simkin as an expert, this formality is primarily for the purpose of permitting counsel to pose hypothetical questions, and the undersigned finds that even without the formality of tender and acceptance, Dr. Simkin's evidence is entitled to the weight and credibility accorded an expert dentist. Although he felt some examiners had individually given Petitioner better scores than she deserved, Dr. Simkin's opinion substantially supported and confirmed the individual grades assigned Petitioner by the regular

   examiners, and he determined that the average grade for each procedure complied with the objective criteria which examiners are required to apply. Utilizing his education, training, and experience, Dr. Simkin concurred that the appropriate overall clinical grade for Petitioner's mannequin portion of the examination should be less than the passing grade of 3.0. This evidence was not refuted.

   
   

10. Together, Ms. Richards and Dr. Simkin established that the grading of Petitioner's examination was in accord with standard procedures.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. See Section 120.57(1), Florida Statutes.

    
    

12. Section 466.006(4)(b), Florida Statutes (1986 Supp.), mandates that graduates of a foreign dental school must pass the Manual Skills on Mannequin examination to be licensed as a dentist in the State of Florida.

    
    

13. Based on the evidence presented during this proceeding, the June, 1986 dental examination was administered and graded in accordance with the applicable statutory and rule provisions. The candidate's evidence failed to prove that the grade awarded to the Petitioner was incorrect.

    
    

14. The Petitioner's presentation of her case, when viewed in its most favorable light, demonstrates that reasonable men may differ regarding the interpretations to be given the adequacy of the candidate's performance in the clinical examination. This, however, is not sufficient to support a determination that error has been made on the part of the Respondent in grading the Petitioner's examination. In State ex rel. I.H. Topp v. Board of Electrical Examiners, 101 So.2d 583 (Fla. 1st DCA 1958), wherein the court stated;

    
    

    Examining boards such as the one here present are generally constituted and established for the purpose of protecting the public against incompetents who seek to enter the various vocations and professions. Such boards are not vested with arbitrary hegemony over the rights of the individual, but are charged with the duty to administer their rules and regulations equally and justly as between all persons and groups who come within the bounds of their jurisdiction. So long as these boards conduct their examinations fairly and uniformly in accordance with lawful authority and their own rules and regulations, their judgment as to the proper grading of such examinations will not be disturbed by the courts, unless clearly shown to be arbitrary or devoid of logic and reason.

    
    

    It is clear from the evidence in the instant cases that the respondent Board, in the exercise of its lawful authority,

    determined that the relator failed to earn a passing grade on its examination.

    Admittedly there will be questions on examinations of this type for which the amount of credit to be given various answers may differ in the minds of reasonable men. That such condition exists is not alone sufficient cause upon which to bottom an alleged abuse of discretion, particularly when as here the ultimate responsibility for assigning grades to such answers falls on those who have been duly elected or appointed to the board and whose function it is to issue a certificate of competency only after being satisfied as to the applicant's entitlement.

    
    

15. The Petitioner has the burden to show by a preponderance of evidence that the grades given on her examination were arbitrary or capriciously given by the examining board. Florida Department of Transportation v. J.W.C. Co., Inc.,

    390 So.2d 778 (Fla. 1st DCA 1981); See State ex rel. Glaser v. J.M. Pepper, 155 So.2d 383 (Fla. 1st DCA 1963), in which a candidate for licensure as a dentist sought to compel the Board of Dentistry to issue him a license even though his score was less than the required general average of 75. In discussing the applicable burden of proof, the court noted at page 384:

    
    

    From the foregoing it appears that the burden assumed by the appellant to establish his right [to] the relief prayed was to prove by preponderance of the evidence that he actually passed the dental examination taken by him. In addition to this burden it was also encumbered upon the Petitioner to prove by a preponderance of the evidence that appellee capriciously and arbitrarily failed to give Petitioner the grade he earned, but instead gave him a failing grade thereby illegally depriving him of the license to which he is entitled.

    
    

16. Absent a showing that the examining board failed to follow standard procedures for conducting and/or grading the examination, or the candidate was treated differently from other examination candidates, test results will not generally be disturbed. Macino v. Department of Professional Regulation, Board of Architecture, 5 FALR 994A (1983).

    
    

17. The candidate has failed to show by a preponderance of the evidence, by expert testimony, or other authoritative source, that the procedures were in fact incorrectly graded.

    
    

18. Respondent, on the other hand, has offered testimonial evidence that the process is standardized and fair. Additionally, Respondent, through testimony of its witnesses using candidate's mannequin models, has demonstrated that the grades given were justified by the comments of the examiners.

RECOMMENDATION

Upon consideration of the foregoing, it is,

RECOMMENDED that the Board of Dentistry enter a Final Order affirming Petitioner's test scores and denying her a license to practice dentistry.

DONE and RECOMMENDED this 8th day of February, 1988, at Tallahassee, Florida.

ELLA JANE P. DAVIS, 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 8th day of February, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4839

The following constitute specific rulings upon the parties' respective proposed findings of fact (PFOF) are hereby made in accord with Section 120.59(2), Florida Statutes.

Petitioner's PFOF

1-7. Accepted in FOF 1-7 respectively. Respondent's PFOF

1. Accepted except as cumulative and unnecessary in FOF 1-2.

2. Covered in FOF 3.

3. Except as unnecessary covered in FOF 3.

4-8. Accepted, but none of these matters is necessary to a resolution of the issues at bar as presented or argued by Petitioner.

1. Covered in FOF 4.

2. Covered in FOF 5.

COPIES FURNISHED:

Pat Guilford, Executive Director Board of Dentistry

130 North Monroe Street Tallahassee, Florida 32399-0750

Robert Koltnow, Esquire

One Datran Center, Suite 502 9100 South Dadeland Boulevard Miami, Florida 33156

William O'Neil, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Chester G. Senf, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 86-004839

Orders for Case No: 86-004839