STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VICTORIA GRIMES, )

)

Petitioner, )

)

vs. ) CASE NO. 91-3469

)

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 November 19, 1991, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Salvatore Carpino, Esquire

1 Urban Center Suite 750

4830 West Kennedy Boulevard Tampa, Florida 33609

For Respondent: Tracey S. Hartman, Esquire

Department of Professional Regulation 1940 North Monroe Street

Suite 60

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUE

Whether Petitioner's challenge to the grading of her performance on the Dentist Manual Skills Examination administered November 16, 1990, should be upheld.

PRELIMINARY STATEMENT

Petitioner was a candidate for the Dentist Manual Skills Examination administered November 16, 1990. After learning that she had not passed the examination, Petitioner challenged the scoring of her performance on two of the procedures, namely Procedure 5 "Completed Endodontic Therapy" and Procedure 6 "Class II Amalgam Restoration". The scoring of these two procedures was reviewed by a consultant employed by Respondent. This consultant recommended that the procedures be re-scored. Upon re-scoring her performance on these two procedures, Petitioner received lower scores than those initially awarded her and she still received a failing grade for the Dental Skills Examination.

At the formal hearing, Petitioner testified on her own behalf and called two additional witnesses, her husband, Dr. Dustin Grimes, and Respondent's

consultant, Dr. Theodore Simpkin. Respondent called no additional witnesses. The parties introduced one joint exhibit.

No transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 22I-6.031, Florida Administrative Code.

Respondent submitted no post-hearing submittal. The only post-hearing submittal was submitted by Petitioner, pro se, in the form of a letter addressed to the undersigned with attachments, filed December 18, 1991.

The letter of December 18, 1991, consists primarily of argument and contains no proposed findings of fact that are necessary to the conclusions reached. Consequently, to the extent that the letter contains findings of fact, those proposed findings are rejected as being unnecessary to the conclusions reached. The letter filed December 18, 1991, contains arguments and asserts certain facts pertaining to the scoring of her performance on Procedure 4 of the examination. Since Procedure 4 was not challenged by Petitioner either in her letter challenging the examination scoring for Procedures 5 & 6 or at the formal hearing, the proposed findings of fact pertaining to the scoring of Procedure 4 are rejected as being irrelevant and not supported by competent evidence.

FINDINGS OF FACT

1. On November 16, 1990, Petitioner sat for the Dental Manual Skills Examination administered by Respondent as part of its regulatory duties pertaining to the practice of dentistry in the State of Florida.

   
   

2. This examination consisted of nine separate procedures. Each procedure was graded by three dentists, each of whom had been trained by Respondent to grade this type of an examination. Procedures 1-5 have a weighted value of 12 while Procedures 6-9 have a weighted value of 10. Following the initial scoring of Petitioner's performance, Petitioner received a final grade of 2.78. A final grade of 3 was the minimum passing grade.

   
   

3. Petitioner challenged the scoring of her performance on Procedure 5 "Completed Endondontic Therapy" and on Procedure 6 "Class II Amalgam Restoration". Following receipt of Petitioner's challenge, Respondent caused the scoring of her performance to be reviewed by Theodore Simpkin, D.D.S., a consultant employed by Respondent. At the recommendation of Dr. Simpkin, Petitioner's performance on Procedure 5 and Procedure 6 was re-scored by three new scorers. As a result of the re-scoring, Petitioner received slightly lower total scores on each of these two procedures and, consequently, a slightly lower final grade. The final grade was still below that required for passage of the examination.

   
   

4. At the formal hearing, Petitioner established that she was entitled to have Procedure 5 re-scored. On Procedure 5 the first examiner scored Petitioner's performance as a 2, the second examiner a 0, and the third a 3. Petitioner was entitled to have her performance re-scored because the second examiner neglected to completely fill out the score sheet. Petitioner's performance on Procedure 5 was re-scored by three other dentists used by Respondent as scorers for the manual skills examination. Petitioner failed to establish that the re-scoring of her performance on Procedure 5 was in error or that she was entitled to more credit than she received. Petitioner received the

   relief to which she was entitled when Respondent caused her performance to be re-scored.

   
   

5. At the formal hearing, Petitioner also established that she was entitled to have Procedure 6 re-scored. On Procedure 6 the first examiner scored Petitioner's performance as a 0, the second examiner a 4, and the third a

1. Dr. Simpkin recommended that Petitioner's performance on Procedure 6 be re- scored because he was of the opinion that her performance should not have received a grade of zero from the first examiner and he was also of the opinion that her performance should not have received a four from the other two examiners. Petitioner's performance on Procedure 6 was re-scored by three other dentists used by Respondent as scorers for the manual skills examination. Petitioner failed to establish that the re-scoring of her performance on Procedure 6 was in error or that she was entitled to more credit than she received. Petitioner received the relief to which she was entitled when Respondent caused her performance to be re-scored.

   
   

   CONCLUSIONS OF LAW

   
   

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

      
      

   2. Petitioner has the burden of proving by a preponderance of the evidence that the scores she received for her performances on the challenged procedures were the result of arbitrary and capricious action and that she is entitled to higher scores. 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) and State ex re. Glasser v. J.M. Pepper, et al., 155 So.2d 383 (Fla. 1st DCA 1963). Petitioner has failed to meet that burden.

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 scoring of her performance on Procedures 5 and 6 of the November 1990 Dental Manual Skills Examination.

DONE AND ENTERED this 30th day of January, 1992, in Tallahassee, Leon County, Florida.

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 30th day of January, 1992.

Copies furnished:

Tracey S. Hartman, Esquire Senior Attorney

Department of Professional Regulation

Northwood Centre, Suite 60 1940 North Monroe Street

Tallahassee, Florida 32399-0792

William Buckhalt Executive Director

Department of Professional Regulation/Board of Dentistry

Northwood Centre, Suite 60 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Jack McRay, General Counsel Department of Professional

Regulation

Northwood Centre, Suite 60 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Salvatore Carpino, Esquire

1 Urban Center Suite 750

4830 West Kennedy Boulevard Tampa, Florida 33609

Victoria Grimes, D.D.S.

223 Summa Street

West Palm Beach, Florida 33405

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: 91-003469

Orders for Case No: 91-003469