STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL GERMAINE, )

)

Petitioner, )

)

v. ) CASE NO. 89-3899

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on August 2, 1990, in Tallahassee, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: Michael J. Cherniga

Attorney at Law

101 East College Avenue Post Office Drawer 1838 Tallahassee, Florida 32301

For Respondent: Vytas J. Urba

Staff Attorney

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

STATEMENT OF ISSUES

The issue is whether Michael Germaine should be granted additional credit for Procedure 03-Amalgam preparation on the December 1988, dentistry examination or should be permitted to retake that portion of the examination at no additional cost.

PRELIMINARY STATEMENT

Germaine presented his own testimony and introduced Petitioner's Exhibits 1-6 in evidence. The Department of Professional Regulation (DPR) presented the testimony of Ansu G. Mason and Theodore Simkin and introduced Respondent's Exhibits 1 and 2 in evidence.

The transcript of the proceedings was filed on September 11, 1990. The parties timely filed proposed findings of fact and conclusions of law. All proposed findings of fact and conclusions of law have been considered. A specific ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.

FINDINGS OF FACT

1. Dr. Michael Germaine is a licensed dentist in the State of New York and has sought to be licensed as a dentist in the State of Florida. He has taken the Florida examination three times and has not passed the clinical examination.

   
   

2. The last time Dr. Germaine took the Florida dental examination was in December 1988. The clinical portion involves the actual performance of various dental procedures on mannequin teeth and on live patients.

   
   

3. On the December 1988, clinical examination, Germaine received an overall score of 2.97. The minimum passing score is 3.00. On Procedure 03- Amalgam preparation, Germaine received a score of 2.66. This score is the result of averaging the grades of 3, 2, and 3 given by three different examiners.

   
   

4. During the clinical portion of the examination, a procedure is available to candidates for writing a "monitor's note." This procedure is the sole means by which a candidate may communicate with the examiners who will grade the procedures. The candidate could use this vehicle to advise the examiners about any problems or special circumstances encountered in the procedure in order to give the examiners all the information necessary to fairly and accurately grade the procedure.

   
   

5. The process calls for the candidate to have a proctor summon a monitor who will oversee the preparation of the note and will deliver the note to the examiners.

   
   

6. Procedure 03-Amalgam restoration involved filling a tooth with an amalgam filling after removal of a cavity. The procedure was timed. Within the allotted time, the candidate was to take an x-ray of the completed restoration. The x-ray was reviewed by the examiners.

   
   

7. When Germaine looked at the x-ray for Procedure 03, he noticed what appeared to be excess loose amalgam lodged next to the tooth. He wanted to write a monitor's note to let the examiners know that he was aware of the excess amalgam that would be removed in the ordinary office setting. He was also concerned that the amalgam looked attached to the tooth, which would be a defect known as a gingival overhang.

   
   

8. Dr. Germaine asked the proctor to send a monitor and then waited for the few minutes that remained of the time allotted for the procedure. When the monitor finally arrived, the time for the procedure had elapsed and for that reason the monitor did not allow Germaine to write a note.

   
   

9. Procedure 03 was graded by three examiners. Examiner 195 gave a grade of 3, but noted on the grade sheet that there "may be loose [amalgam] at gingival margin (obvious on x-ray)." There is a place on the grader's sheet for certain "comments" to be marked if applicable to the procedure. Examiner 195 marked comments for Functional Anatomy and for Gingival Overhang.

   
   

10. Examiner 131 awarded 2 points for the procedure and marked comments for Contact and for Gingival Overhang. Examiner 133 awarded 3 points and marked comments for Functional Anatomy and Margin.

11. Dr. Theodore Simkin, accepted as an expert in dentistry, is an experienced examiner and has served DPR as a consultant doing grade reviews.

    Dr. Simkin acknowledges that Germaine should have been able to write a monitor's note, but such a note should not have changed the grading. Procedure 03 is a patient procedure and as such, examiners are only permitted to grade on what they see in the patient's mouth. The x-rays would only have served to alert the examiners to check the interproximal to see if the amalgam shown on the x-ray was gingival overhang or excess, loose amalgam.

    
    

12. If the x-rays had been relied on for grading purposes, the grade would have been zero (0) because the x-rays show excess gingival overhang. Any gingival overhang which was as excessive as appeared on the x-ray would have mandated a grade of zero (0) as explained on the grading sheets of each examiner. Since a grade of zero was not given, it is apparent that the examiners thought the excessive amalgam shown on the x-ray was neither gross nor attached.

    
    

13. That Examiner 195 was aware of the loose amalgam between the teeth is obvious from the grade sheet and from an Examiner to Monitor Instruction which went back to Germaine after grading. The instruction was to have the candidate remove the amalgam interproximal (between the teeth). Gross gingival overhang cannot be simply removed like loose amalgam can be removed. Even being aware of the loose amalgam, Examiner 195 still gave Germaine a passing grade of 3.

    
    

14. Dr. Germaine maintains that the examiners were biased because they looked at the x-ray without having the benefit of the monitor's note which he was not allowed to write. The assertion is not supported by the competent, substantial evidence, but is instead based on speculation and assumption.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction of the parties to and subject matter of these proceedings. Section 120.57(1), Florida Statutes.

    
    

16. The burden is on the candidate challenging the examination to prove by the preponderance of the evidence that the scoring was erroneous or that the agency acted arbitrarily or capriciously. Florida Department of Transportation

    v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981).

    
    

17. Examinations which are required for licensure must be fairly and uniformly administered, and if they are not, then the agency has acted arbitrarily and capriciously. Wicks v. Department of Professional Regulation,

    12 F.A.L.R. 1669 (Case No. 89-1912, January, 1990). The judgment of the examiners is not to be disturbed unless it is arbitrary or devoid of logic and reason. Wicks, supra. If the examination has not been fairly and uniformly administered and the candidate has been placed at a disadvantage, the appropriate remedy is to allow the retaking of the challenged portion of the examination at no charge to the candidate. Wicks, supra; Flake v. Department of Professional Regulation, 11 F.A.L.R. 5053 (Case No. 88-5997, June 22, 1989).

    
    

18. In the present case, the applicant has not carried his burden of proof. The examination was fairly administered and the failure to accept a monitor's note from Germaine did not impair the fairness of the examination or the correctness of the grades. The x-rays and grade sheets of the examiners show that their scoring was reasonable and fair. Dr. Germaine was not placed at

a disadvantage by the administration of the examination or the grading of Procedure 03. Dr. Germaine has failed to prove he is entitled to any relief, including the retaking of the challenged portion of the examination.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that The Department of Professional Regulation enter a Final

Order dismissing the petition filed by Michael Germaine and denying him

licensure as a dentist in the State of Florida.

DONE and ENTERED this 28th day of September, 1990, in Tallahassee, Florida.

DIANE K. KIESLING

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this

28th day of September, 1990.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-3899

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case.

Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Michael Germaine

1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 3(2); 4-6(4-6); 7 first sentence (7); and 9(8).

2. Proposed findings of fact 2 and 11 are unnecessary.

3. Proposed findings of fact 7 second sentence, 12, 16, 17, and

   20 are unsupported by the competent, substantial evidence.

4. Proposed findings of fact 8, 13, and 14 are subordinate to the facts actually found in this Recommended Order.

5. Proposed findings of fact 10, 15, 18, and 19 are irrelevant.

Specific Rulings on Proposed Findings of Fact

Submitted by Respondent, Department of Professional Regulation

1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(3).

2. Proposed finding of fact 2 is unnecessary.

3. Proposed finding of fact 3 is a mere summary of testimony and is not a proposed finding of fact.

Copies furnished:

Michael J. Cherniga Attorney at Law

Post Office Drawer 1838 Tallahassee, FL 32301

Vytas J. Urba Staff Attorney

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

Lawrence A. Gonzalez, Secretary Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

Docket for Case No: 89-003899

Orders for Case No: 89-003899