STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GARY SLOAN, )

)

Petitioner, )

)

vs. ) CASE NO. 89-3301

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF )

DENTISTRY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written Notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Daniel Manry, held a formal hearing in the above-styled case on January 29, 1990, in Palm Beach Gardens, Florida.

APPEARANCES

For Petitioner: Gary Sloan, pro se

203 La Puenta

Palm Beach, Florida 33480

For Respondent: E. Harper Field

Deputy General Counsel

Department of Professional Regulation 1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUES

The issue for determination in this proceeding is whether Petitioner's examination for licensure as a dentist was incorrectly graded.

PRELIMINARY STATEMENT

By letter dated June 12, 1989, Petitioner requested a hearing to contest the failing grade he received on the dental examination given in December, 1988. The matter was referred to the Division of Administrative Hearings ("DOAH") for assignment of a hearing officer on June 21, 1989, and originally set for formal hearing on September 15, 1989. Several continuances were granted for an extended period to allow time for the Petitioner to recover from medical problems. The formal hearing was eventually set for January 29, 1990, pursuant to a Notice of Hearing issued on December 18, 1989.

At the formal hearing, Petitioner limited his challenge to two clinical procedures referred, to in the clinical exam as Procedure Number 01 and Procedure Number 06. Petitioner testified in his own behalf as an expert in dental procedures, called no other witnesses, and presented four exhibits which

were admitted in evidence over objection. Respondent called one expert witness, Theodore Simpkin, DDS, and presented five exhibits which were admitted in evidence without objection. Dr. Simpkin was accepted as an expert in dental practice and procedures and the dental examination. Procedure Numbers 01 and 06 were produced in Respondent's Exhibit 3 and 4, respectively.

A transcript was ordered and filed on February 27, 1990. Proposed findings of fact and conclusions of law were timely filed by Respondent on March 1, 1990. As of the date of this Recommended Order, Petitioner has not filed proposed findings of fact and conclusions of law were timely filed. Petitioner has not filed proposed findings of fact and conclusions of law. Respondent's proposed findings of fact are addressed in the Appendix to this Order.

FINDINGS OF FACT

1. Petitioner, Dr. Gary Sloan, was an unsuccessful candidate for the dental examination in December, 1988. The dental examination is comprised of three portions: the written examination; the diagnostic skills examination; and the clinical (or practical) examination. A final grade of 75 is required on the written examination and the diagnostic skills examination. The minimum score required on the clinical examination is 3.0. Petitioner received scores of 88 and 77 on the written and diagnostic skills examinations, respectively.

   However, Petitioner received a score of only 2.80 on the clinical examination.

   
   

2. Procedures performed in the clinical examination are graded by three examiners pursuant to a blind grading system. The grade for each procedure is determined by averaging the scores of the three examiners. Each procedure is graded in a holistic manner and not as a numeric point deduction for errors and mistakes. The highest and lowest scores an examiner can award for a particular procedure are 5 and 0, respectively. Each examiner may make comments on the score given for each procedure. Comments by an examiner are mandatory for any failing score and optional for any other score.

   
   

3. Procedure Number 01 required Petitioner to perform a periodontal exercise on a live patient. The periodontal exercise involved a definitive debridement with a minimum of five teeth. Procedure Number 06 required Petitioner to perform an endodontic procedure on a mannequin. The endodontic procedure involved access preparation of a tooth including proper identification of canals.

   
   

4. Petitioner was qualified as an expert in dental procedures. Petitioner is licensed in other states and has performed procedures similar to those required in Procedure Numbers 01 and 06 many times in private practice. Respondent expressly stated that it had no objection to Petitioner being qualified as an expert.

   
   

5. Petitioner performed Procedure Numbers 01 and 06 properly. Petitioner satisfied each of the criteria for the definitive debridement required in Procedure Number 01. Petitioner left no supra-gingival or sub-gingival calculus on the patient's teeth. Any remaining root roughness was part of the patient's natural anatomy. Any remaining stain was non-removable stain. Petitioner satisfied each of the criteria for the access preparation required in Procedure Number 06 including proper identification of canals.

   
   

6. The evidence presented by Petitioner was uncontroverted by Respondent. Respondent presented the grades and comments given by the examiners for Procedure Numbers 01 and 06 performed by Petitioner. However, Respondent did

   not call an examiner for either Procedure Numbers 01 or 06 as a witness in this proceeding. Respondent's expert witness was not an examiner for either Procedure Numbers 01 or 06. Therefore, Respondent presented no direct evidence to refute the evidence presented by Petitioner.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this proceeding. Section 120.57(1), Florida Statutes. The parties were duly noticed for the formal hearing.

   
   

8. Petitioner has the burden of proof in this proceeding and must demonstrate by a preponderance of the evidence that he is entitled to the relief requested. Florida Department of Transportation v. J. W. C. Comany, Inc., 396 So.2d 778 (Fla. 1st DCA 1981). Petitioner is not required, as suggested by Respondent, to show that the grading of his examination was arbitrary or capricious in order to prevail. The cases of State ex rel I. H. Topp v. Board of Electrical Contractors, 101 So.2d 583 (Fla. 1st DCA 1958) and State ex rel Glaser v. J.M. Pepper, 155 So.2d 383 (Fla. 1st DCA 1963) involved mandamus proceedings in circuit court and do not establish the standard of proof in administrative proceedings.

   
   

9. Petitioner satisfied his burden of proof in this proceeding. Petitioner was accepted as an expert in dental procedures. His testimony established that he correctly completed the procedures required in Procedure Numbers 01 and 06 and that the scores he received from the examiners were erroneous.

   
   

10. Respondent presented no direct evidence to refute the prima facie case established by Petitioner. The exam reports, examiner's comments contained in the exam reports (the "exam reports and comments"), and the expert testimony of Dr. Simpkin explaining the examiner's comments are hearsay within the meaning of Subsection 90.801(1)(c), Florida Statutes. The documentary evidence and the testimony presented by Respondent constitute a statement other than a statement made by the examiners testifying at the hearing, and each was offered in evidence to prove the truth of the statement made by the examiners outside of the hearing.

    
    

11. Hearsay evidence presented by Respondent is not sufficient in itself to support a finding of fact unless such hearsay evidence either supplements or explains other evidence or would be admissible over objection in civil actions. Subsec. 120.58(1)(a), Fla. Stat. In this proceeding, Respondent did not present hearsay evidence to supplement or explain other competent and substantial evidence. Instead, Respondent presented the testimony of Dr. Simpkin to supplement or explain documentary hearsay evidence in the form of exam reports and comments that were prepared by examiners who did not testify at the hearing.

    
    

12. The hearsay evidence resented by Petitioner would not be admissible over objection in a civil action for the purpose of Subsection 120.58(1)(a) Florida Statutes.. The hearsay evidence presented by Petitioner does not qualify as an exception to hearsay under Sections 90.803 and 90.804. In particular, the exam reports and comments are not public records which otherwise qualify as exceptions to hearsay under Subsection 90.803(8). Subsec. 119.07(3)(c), Fla. Stat. See also, Secs. 455.229 and 455.230, Fla. Stat. The exam reports and comments also do not satisfy the requirements of the so-called

business record exception to hearsay in Subsection 90.803(6). The exam reports and comments were not authenticated by a records custodian or other qualified witness. 1/

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's request for a re-grade of his December, 1988,

clinical examination be GRANTED and that Petitioner be given full credit for

Procedure Numbers 01 and 06.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 11 day of April 1990.

DANIEL MANRY

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 11 day of April 1990.

ENDNOTE

1/ While Dr. Simkin was qualified as an expert on the dental examination, he was not a qualified witness for purposes of Subsection 90.803(6), and his testimony did not satisfy the requirements of Subsection 90.803(6).

APPENDIX

Respondent has submitted proposed findings of fact. It has

been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where hey have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Respondent had no finding of fact number one. The first numbered paragraph in Respondent's findings of fact was paragraph 2. Petitioner has not submitted proposed findings of fact.

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason of or Rejection

2-10 Rejected as irrelevant and immaterial.

11 That portion pertaining to expertise included in finding 4

The remainder is rejected as hearsay.

COPIES FURNISHED:

William Buckhalt Executive Director

Department of Professional Regulation Board of Dentistry

1940 North Monroe, Suite 60

Tallahassee, FL 32399-0792

Kenneth E. Easley General Counsel

1940 North Monroe, Suite 60

Tallahassee, FL 32399-0792

E. Harper Field, Esquire

Department of Professional Regulation 1940 North Monroe, Suite 60

Tallahassee, FL 32399-0792

Dr. Gary Sloan

302 South County Road, #150 Palm Beach, Florida 33480

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF DENTISTRY

GARY SLOAN,

Petitioner,

vs. CASE NO: 89-3301

DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF DENTISTRY,

Respondent,

/

FINAL ORDER

This matter was heard by the Board of Dentistry pursuant to Section 120.57(1), Florida Statutes, on July 28, 1990, in Tallahassee, Florida, for consideration of the Hearing Officer's Recommended Order (exhibit A) in the above-styled case. At the hearing, Petitioner was present, but was not represented by legal counsel. Respondent was represented by Nancy M. Snurkowski, Senior Attorney. No exceptions were filed by either party. At the opening of the proceedings, the Chairman of the Board set a time limit of ten

1. minutes per party for presentation of the Recommended Order. Petitioner objected to the time-limit arid was informed that he should endeavor to abide by the limitation, but that the chairman would reserve the discretion to extend each party's allotted time. Petitioner was permitted nineteen minutes for his presentation, which consisted of merely rearguing the evidence and testimony in the record. Petitioner was then directed to end his presentation. Counsel for Respondent made her presentation within the ten minute time-limit. Upon consideration of the Hearing Officer's Recommended Order, after review of the entire record and having been fully advised in the premises, the Board makes the following findings and conclusions:

   
   

   FINDINGS OF FACT

   
   

   1. The Hearing Officer's Findings of Fact as set forth in paragraphs 1-6 on pages 3 and 4 of the Recommended Order are adopted by the Board and incorporated herein by reference.

      
      

   2. There is competent, substantial evidence to support the Board's findings.

CONCLUSIONS OF LAW

1. The Board has jurisdiction of the parties and subject matter of this case pursuant to Section 120.57 and Chapter 466, Florida Statutes.

2. The Division of Administrative Hearings had jurisdiction over the parties and subject matter of this case for the purpose of holding a formal hearing and issuing a Recommended Order pursuant to Section 120.57(1), Florida Statutes.

   
   

3. The parties were duly noticed for the formal hearing and the Final Order review conducted by the Board.

   
   

4. The Petitioner has the burden of proof in an exam challenge proceeding and must demonstrate by a preponderance of the evidence that the grades in issue were arbitrarily or capriciously given by the Board of Dentistry. State ex. rel. Glasser v. Pepper 155 So.2d 383 (Fla. 1st DCA 1963); Harac v. Department of Professional Regulation Board of Architecture, 484 So.2d 1333 (Fla. 3d DCA 1986);re: Altchiler 4 FALR 724A (Florida Board of Dentistry Final Order, January 16, 1982); and In re Chokhawala, 5 FALR 98A (Florida Board of Dentistry Final Order, November 15, 1988). 1/

   
   

5. Petitioner failed to satisfy his burden of proof in this case. 2/ Petitioner was accepted as an expert in dental procedures. His testimony established that he correctly completed the procedures required in Procedure Numbers 01 and 06 and that the scores he received from the examiners were erroneous. However, there is absolutely no evidence presented that Respondent or the clinical examiners or re-graders acted invalidly or with bad faith. The evidence adduced at the hearing, at most, illustrates only a difference of professional opinion regarding the quality of the work performance by the Petitioner during the December, 1988 dental examination. There was absolutely no proof or allegation in the record that the individual examiners selected and utilized during the examination lacked qualifications or training for the task. Independent testimony offered by Respondent's expert witness at the hearing supported the findings of deficiencies in Petitioner's work product on Procedure Number 06 as noted by the examiners and re- graders. /3 While the Petitioner as his own expert would have awarded grades higher than the examiners and re- graders did, the fact that Petitioner has not been instructed or standardized? in any dental examination grading process, and that his testimony is entirely self-serving must be taken into account when reviewing his testimony. The proof offered by Petitioner shows only that professionals do not make identical conclusions when grading an applicant's performance. It is recognized that such a showing is patently insufficient to demonstrate that the examiners acted arbitrarily or capriciously. See, In re Altchiler, supra, and In re

   Chokhawala, supra.

   
   

6. In light of Petitioner's failure to meet his burden of proof in this case, the Hearing Officer's determination as to the hearsay nature of Respondent's evidence and testimony is irrelevant to the resolution-of this matter. Therefore paragraphs 4-6 of the Hearing Officer's Conclusions of Law are rejected as being irrelevant.

DISPOSITION

Based upon the foregoing Findings of Fact and Conclusions of Law the Recommendation of the Hearing Officer is REJECTED/ 4 and Petitioner's challenge of his grade of 2.80 on the December 1988 dental examination is DENIED.

WHEREFORE, it is ORDERED AND ADJUDGED that the Petitioner failed to pass the dental licensure examination and shall not be certified for licensure as a dentist in Florida.

This Final Order becomes effective upon its filing with the Board Clerk.

The parties are hereby notified that they may appeal this Final Order by filing one copy of a Notice of Appeal with the Clerk of the Department of Professional Regulation and by filing a filing fee and one copy of a Notice of Appeal with the District Court of Appeal within thirty (30) days of the date this Final Order is filed.

DONE AND ORDERED this 6 day of August 1990.

BOARD OF DENTISTRY

William F. Robinson, D. D. S. Chairman

ENDNOTES

1/ The Hearing Officer concluded that arbitrary or capricious is not the correct standard in administrative proceedings. That conclusion is rejected.

2/ The Hearing Officer's conclusion that Petitioner met his burden of proof is rejected.

3/ Transcript of formal hearing, page 152.

4/ Even if Petitioner had met his burden proof and established entitlement to a better score, no evidence is in the record to establish what value on the established grading scale of 05 should be awarded to Petitioner. Therefore, there is no support for the Hearing Officer's Recommendation of "full credit" for Procedure Numbers 01 and 06.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been forwarded by certified U.S. Mail this 13 day of August , 1990, to Dr. Gary Sloan c/o Mailbox 212 Brazilean Avenue, Palm Beach, Florida 33480.

WILLIAM H. BUCKHALT

Executive Director

Docket for Case No: 89-003301

Orders for Case No: 89-003301