STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BEATRIZ JACOBO, )

)

Petitioner, )

)

vs. ) CASE NO. 91-3086

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on July 15, 1991, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Beatriz Jacobo, pro se

175 Fort Wilkinson Road Milledgeville, Georgia 31061

For Respondent: Vytas J. Urba, Esquire

Assistant General Counsel Department of Professional

Regulation

1940 N. Monroe Street Tallahassee, Florida 32399-0792

STATEMENT OF THE ISSUE

Whether Petitioner's licensure examination challenge should be sustained.

PRELIMINARY STATEMENT

Petitioner is a dentist who was a candidate for the December 1990 dental examination. Each candidate for licensure is given three opportunities to present a patient who presents certain minimal periodontal problems upon whom the candidate can demonstrate his or her proficiency in periodontics. Examiners employed by Respondent to assist in the administration of the examination rejected certain of the teeth selected by Petitioner on each of her three opportunities. Consequently, Petitioner received a score of zero on the periodontal portion of the examination, which greatly contributed to her failing the examination. Thereafter, Petitioner filed this challenge to the rejection of the teeth she selected on her first, second and third opportunities.

At the formal hearing, Petitioner testified on her own behalf and presented one composite exhibit, which was accepted into evidence. Respondent presented the testimony of Dr. Theodor Simkin, who is a consultant employed by Respondent

as an assistant to the examination supervisor, and the testimony of Dr. Ansu Mason, who is employed by Respondent as a psychometrician. Respondent presented four exhibits, each of which was accepted into evidence.

A transcript of the proceedings has been filed. The only post-hearing submittal filed on behalf of Petitioner was in the form of a letter addressed to the undersigned Hearing Officer from Pedro Luis Irigonegaray, a member of the Florida Bar whose office address is in Topeka, Kansas. Rulings on the parties' proposed findings of fact may be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner is a dentist who seeks licensure to practice dentistry in the State of Florida and who was a candidate for the dental examination administered by Respondent in December 1990.

   
   

2. Each candidate for licensure is given three opportunities to present a patient who presents certain minimal periodontal problems upon whom the candidate can demonstrate his or her proficiency in periodontics. Rule 21G- 2.013, Florida Administrative Code, provides, in pertinent part, as follows:

   
   

   (2)(b) ... It is the applicant's responsibil- ity to provide a patient who is at least 18 years of age and whose medical history permits dental treatment. In order that the examination may be conducted in an efficient and orderly manner, an applicant will be allowed no more than three attempts to qualify a patient during the specified check-in period for each procedure requiring a patient.

   
   

3. The candidate is required to select five teeth that meet certain criteria from the candidate's first patient. Rule 21G-2.013, Florida Administrative Code, provides those criteria, in pertinent part, as follows:

   
   

   (4) The grading of the clinical portion of the dental examination shall be based on the following criteria:

   * * *

   (b) Periodontal exercise on a patient with a minimum of 5 teeth, none of which shall have a full crown restoration, all of which shall have pockets at least 4 mm. in depth with obvious sub-gingival calculus detectable by visual or tactile means and radiographic evidence of osseous destruction; at least one

   tooth shall be a multi-rooted molar which shall be in proximal contact with at least one other tooth; none of the 5 teeth shall be primary teeth. All calculus appearing on radiographs must be detectable by visual or tactile means.

   
   

4. The patient is thereafter examined by two examiners who are dentists to determine whether each selected tooth meets the criteria. If the examiners determine that one or more of the teeth selected do not meet the criteria, the candidate has a second opportunity and may select additional teeth from patient

   one, or the candidate may present patient two and select five teeth from the new patient. If the examiners determine that one or more of the teeth selected on his second opportunity do not meet the criteria, the candidate has a third opportunity and may select additional teeth from patient two, or the candidate may present patient three and select five teeth from that third patient. If the examiners determine that one or more of the teeth selected on his third opportunity do not meet the criteria, the candidate receives, pursuant to Rule 21G-2.013(4)(b), Florida Administrative Code, a score of zero on the periodontics portion of the examination.

   
   

5. For her first opportunity, Petitioner presented Patient #1 and selected teeth 13, 14, 19, 20, and 21. Examiners 187 and 054 examined the five teeth selected by Petitioner and rejected teeth 13, 20, and 21. Neither of these examiners testified and the reasons for the rejection of these three teeth were not given. Patient #1 had been used by Petitioner during the June 1990 administration of the examination. The five teeth selected from Patient #1 in the June 1990 examination had been accepted, but the teeth that had been accepted did not include teeth 13, 20, or 21.

   
   

6. For her second opportunity, Petitioner presented Patient #2 and selected teeth 19, 20, 21, 22, and 23. Examiners 176 and 080 examined these five teeth and rejected teeth 19, 20, and 23. Neither of these examiners testified and the reasons for the rejection of these three teeth were not given.

   
   

7. For her third opportunity, Petitioner again used Patient #2, but substituted teeth 3, 29, and 30 for the teeth that had been rejected in opportunity two, so that the selected teeth were 3, 21, 22, 29, and 30. Examiners 162 and 195 rejected teeth 3, 29, and 30. Neither of these examiners testified and the reasons for the rejection of these three teeth were not given.

   
   

8. Petitioner thereafter received a zero on the periodontal portion of the examination, which greatly contributed to her failing the examination. Petitioner received a final grade of 2.51 on the examination. She needed a score of 3.00 to pass the examination.

   
   

9. Each of the examiners who are used by Respondent in the administration of the dental examinations is a dentist who has been licensed in the State of Florida for a minimum of five years. Prior to the examination, the examiners undergo a day long standardization session during which the criteria to be applied and the proper method of application are taught.

   
   

10. These dentists who serve as examiners examine the patient and the selected teeth from that patient independently of one another. Neither examiner knows the results of the examination performed by the other examiner and neither examiner knows the candidate who brought that patient to the examination.

    
    

11. The purpose of the preliminary examination is to determine whether the teeth selected by the candidate meet the criteria established by Rule 21G- 2.013(4)(b), Florida Administrative Code.

    
    

12. The form used by the examiners does not require that the reason for the rejection of a tooth to be stated.

    
    

13. If both examiners reject a particular tooth, that tooth cannot be used by the candidate.

14. Petitioner failed to present evidence upon which it can be concluded that the teeth she presented from the two patients she brought to the examination met the criteria for examination found in Rule 21G-2.013(4)(b), Florida Administrative Code.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

    
    

16. Petitioner has the burden of proving by a preponderance of the evidence that she is entitled to the relief she seeks. Rule 28-6.08(3), Florida Administrative Code. See also, Florida Department of Transportation v. J.W.C., Co., 396 So.2d 778 (Fla. 1st DCA 1981). There was no evidence presented by Petitioner that established that the two patients she presented and that the teeth she selected from those patients met the criteria for examination found in Rule 21G-2.013(4)(b), Florida Administrative Code. The burden is on Petitioner to establish that the teeth she presented met the criteria for examination and that Respondent's rejection of those teeth constituted arbitrary and capricious action. State of Florida v. J.M. Pepper, 155 So.2d 383 (Fla. 1st DCA 1963), Topp v. Board of Electrical Examiners, 101 So 2d 583 (Fla. 1st DCA 1984).

    
    

17. Petitioner's argument that the first patient she presented (Patient #

    1) had been accepted when she first took the examination in June 1990 does not establish that Respondent acted in an arbitrary and capricious manner in rejecting the teeth selected from Patient #1 for the December 1990 examination. Although the same mouth was involved, different teeth in that mouth were selected for the two examinations. The teeth that were previously accepted from her Patient # 1 were not the same five teeth as Petitioner selected for the December 1990 examination. There was no competent, substantial evidence that the five teeth Petitioner selected from Patient #1 for the December 1990 examination met the criteria established by Rule 21G-2.013(4)(b), Florida Administrative Code.

    
    

18. Petitioner's argument that Respondent did not establish the reasons that the teeth selected from the two patients she presented were rejected does not establish her entitlement to prevail in this examination challenge. It was not necessary for the six examiners who evaluated the three sets of teeth presented by Petitioner to testify in these proceedings because the burden is not on Respondent to establish the reasons that the teeth were rejected. It remains Petitioner's burden to establish that Respondent's rejection of those teeth constituted arbitrary and capricious action. The record is devoid of such evidence pertaining to the teeth selected by Petitioner in any of the three opportunities she was provided to qualify a patient as required by Rule 21G- 2.013(2)(b), Florida Administrative Code.

    
    

19. Because Petitioner failed to meet her burden of proof in these proceedings, her challenge to the examination should be rejected.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which denies Petitioner's challenge to the dental examination.

RECOMMENDED in Tallahassee, Leon County, Florida, this 26th day of August, 1991.

CLAUDE B. ARRINGTON

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 26th day of August, 1991.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3086

The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner.

1. The proposed findings of fact in the first numbered paragraph of Mr. Irigonegaray's letter dated August 8, 1991, are adopted in material part by the Recommended Order.

2. The proposed findings of fact in the second numbered paragraph of Mr. Irigonegaray's letter dated August 8, 1991, are rejected as being unnecessary to the conclusions reached. The greater weight of the evidence was that the statistics cited by this paragraph were not designed to measure the professional qualifications of an examiner or how he or she grades a particular criteria. Therefore, these statistics do not support Petitioner's contention that the teeth she selected were arbitrarily or capriciously rejected.

The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent.

1. The proposed findings of fact in paragraphs 1-5 are adopted in material part by the Recommended.

COPIES FURNISHED:

Jack McRay General Counsel

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

William Buckhalt Executive Director

Department of Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Vytas J. Urba, Esquire Department of Professional

Regulation Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Beatriz Jacobo

175 Fort Wilkinson Road Milledgeville, Georgia 31061

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-003086

Orders for Case No: 91-003086