The Issue The issue in this case is whether Petitioner, Gary Cook, should have received a passing score on the Barber Practical Examination taken by him in November 1996.
Findings Of Fact On or about November 25, 1996, Petitioner, Gary Cook, took the Barber Practical Examination (hereinafter referred to as the "Exam"). The Exam was scored by two examiners: Geri Scott and Don Gibson. The Bureau of Testing of Respondent, the Department of Business and Professional Regulation (hereinafter referred to as the "Department") subsequently notified Mr. Cook that he had earned a total score of 70 on the Exam. A score of 75 is considered a passing grade. Mr. Cook was notified by the Department that he earned a total score of 14.00 points on the sanitation portion of the Exam. The maximum score which may be earned for the sanitation portion of the Exam is 25.00. On or about December 30, 1996, Mr. Cook requested a formal administrative hearing to contest the determination of his score on the Exam. Mr. Cook challenged his score on the sanitation portion of the Exam. The sanitation portion of the Exam consists of ten criteria for which points may be earned: Criteria Maximum Score Used proper linen setup for the shampoo 2 Properly stored clean and dirty linen during the shampoo 3 Washed hands before beginning the haircut 2 Used the proper linen setup for the haircut 3 During the haircut tools were replaced in sanitizer after each use 3 Properly stored clan and dirty linen during the haircut 2 Washed hands before beginning the permanent wave 2 Used the proper linen/cottonwrap setup for the permanent wave 3 Kept tools sanitized during the permanent wave 3 Properly stored clean and dirty linen during the permanent wave 2 TOTAL POSSIBLE POINTS 25 The criteria of the sanitation portion of the Exam are designated as "procedures" which candidates are required to meet during the Exam. If both examiners determine that a candidate carried out a procedure, the candidate is awarded the total available points for the procedure. If both examiners determine that a candidate did not carry out the procedure, the candidate is awarded no points for the procedure. Finally, if one examiner determines that a candidate carried out the procedure and the other examiner disagrees, the candidate is awarded half of the available points for the procedure. On the sanitation portion of the Exam Mr. Cook received no points for procedures B-2, C-2, and C-3. Mr. Cook received half the points available for procedures B-4 and C-4. Mr. Cook specifically alleged that he should have been awarded the maximum points for procedures B-2, B-4, C-2, C-3, and C-4. For procedure B-2, the examiners were to determine whether "[t]he candidate used the proper linen setup for the haircut." This procedure was worth a total of 3 points. Both examiners determined that Mr. Cook had not used the proper linen setup. For purposes of procedure B-2, the haircut includes shaving around the outline of the hair. Therefore, proper linen setup for the shave is a part of the haircut. Mr. Cook did not dispute the fact that he had not used the proper linen setup for the shave portion of the haircut. Mr. Cook suggested that the haircut portion of the Exam did not include the shave. The evidence failed to support this assertion. Rule 61GK3-16.001(7)(a)8., Florida Administrative Code, provides that a "haircut" for purposes of barber examinations includes a determination that "[s]ideburns, outline and neckline are clean shaven." See also, Page 7 of the Candidate Information Booklet, Respondent's Exhibit 3. Mr. Cook failed to prove that he fulfilled the requirements of procedure B-2. For procedure B-4, the examiners were to determine whether "[t]he candidate properly stored clean and dirty linen during the haircut." [Emphasis added] This procedure was worth a total of 2 points. One examiner determined that Mr. Cook had not met this criterion. Mr. Cook, therefore, was awarded 1 point for this procedure. The examiner that found that Mr. Cook had not performed procedure B-4 properly determined that Mr. Cook had placed a box of rubber gloves on a bar behind the area in which he was working. The Department has cited no authority which defines the term "linens" as including rubber gloves. The common definition of the term "linens" does not suggest that rubber gloves constitute linens. The term "linen" is defined as follows: 1 a : cloth made of flax and noted for its strength, coolness, and luster b : thread or yarn spun from flax 2 : clothing or household articles made of linen cloth or similar fabric3 : paper made from linen fibers or with a linen finish Webster's Ninth New Collegiate Dictionary 1984. Mr. Cook should have received full credit for procedure B-4. Therefore, Mr. Cook should have received one additional point on procedure B-4. For procedure C-2, the examiners were to determine whether "[t]he candidate used the proper linen/cotton wrap setup for the permanent wave." This procedure was worth a total of 3 points. Both examiners determined that Mr. Cook had not met this criterion. Both examiners determined that Mr. Cook had failed to use a proper cotton-wrap setup. Mr. Cook failed to explain what steps he undertook in setting up for the permanent wave. Mr. Cook, therefore, failed to prove that he fulfilled the requirements of procedure C-2. For procedure C-3, the examiners were to determine whether "[t]he candidate kept tools sanitized during the permanent wave." This procedure was worth a total of 3 points. Both examiners determined that Mr. Cook had not met this criterion. Both examiners determined that Mr. Cook had placed rods used for the permanent on the back bar. Mr. Cook failed to prove that the did not leave rods on the back bar while performing the permanent wave. Mr. Cook, therefore, failed to prove that he fulfilled the requirements of procedure C-3. For procedure C-4, the examiners were to determine whether "[t]he candidate properly stored clean and dirty linen during the permanent wave." This procedure was worth a total of 2 points. One examiner determined that Mr. Cook had not met this criterion. The examiner who found that Mr. Cook had not met this criterion determined that Mr. Cook had left end-wraps on the back bar. Mr. Cook failed to prove that he did not leave end- wraps on the back bar. Mr. Cook, therefore, failed to prove that he fulfilled the requirement of procedure C-4. All of the criteria for the sanitation portion of the Exam are listed in a Candidate Information Booklet for the Barber Examination. See page 6 of Respondent's Exhibit 3. The booklet also explains the scoring procedure. Mr. Cook proved that he should have been awarded one additional point on the sanitation portion of the Exam. Therefore, Mr. Cook earned a total score of 71 on the Exam. Mr. Cook's score is below a passing score of 75.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department of Business and Professional Regulation, Barbers Board, finding that Gary Cook should have received a total score of 71 on the Barbers Practical Examination of November 1996. DONE AND ENTERED this 2nd day of September, 1997, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 1997. COPIES FURNISHED: Gary Cook 202 Mulberry Circle Crawfordville, Florida 32327 R. Beth Atchison, Assistant General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Joe Baker Department of Business and Professional Regulation Board of Barbers 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact 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. 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. 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. 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. 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. 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.
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.
Findings Of Fact Lucien A. Jonet took the practical examination administered by the Board of Cosmetology for licensure on February 17, 1981. Jonet obtained a score of 71.5 percent on this examination in which 75 percent is a passing score. Jonet lost three points for failure to properly drape his model for Chemical Straightening, Bleaching and Shampooing. The model used by Jonet in the examination stated she moved, loosened and removed the drape at times because of the heat and her personal discomfort. When Jonet was present, he redraped the model; however, as required by the examination procedure, Jonet was not present when the model was examined. The Board's instructions do not advise the models or the examinees that the models should not touch their drapes or towels. The Board's confidential instructions to examiners provide that points be deducted for failure to properly drape the model. At least one of the examiners testified she would take points off for this performance criteria if the drape were loose or the towel off when she checked the model. Jonet's model had hair that was of minimal length, and Jonet stated her hair was so uneven that it could not be cut to a blended, even length. He gave the model a styled, uneven shag cut. The Board's confidential instructions to the examiners require that examinees' performances be graded on an even, blended haircut with even edges and necklines. Although the instructions to examinees advise that models should have hair of sufficient length that after an inch has been cut from the hair it may be curled, there are no specific instructions that they will be graded on a blended, even cut. The Board's only instructions to examinees on haircutting at the examination are as follows from the Hearing Officer's Exhibit 1: "We recommend a basic haircut. An extremely short style cut would interfere with the performance of molding and pin curl portion of your exam. You may use the hair cutting implements of your choice. Any hair falling on the floor must be cleaned up before grading. Are there any questions?" The examiners also stated that the examinees should report problems with their models' hair that would affect the examinees performances, and that when such problems existed they would not deduct points. However, the instructions to the examinees do not contain this caveat. Jonet lost eight points on haircutting: two points for gaps left behind his model's ears, two points twice for an uneven neckline, and two points for uneven blending of the hair. One of the examiners stated that the last portion of the curriculum for most Florida cosmetology schools is spent in simulation of the Board's examination, and that these schools are well versed in the specific criteria which the Board uses in assessing performance. Jonet had sought a reexamination but was denied because he had taken the first examination with 600 hours of evaluated credit, and the Board's rules require a person with only 600 hours of school who fails the examination to finish another 600 hours. The Board denied Jonet the opportunity to seek an added 600 hours of evaluated credit. Jonet has more than 40 years' experience in cosmetology, is a graduate of a European program, was licensed in Illinois prior to an examination being required, and held an Illinois license for 23 years.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that Lucien A. Jonet be permitted to take the Board of Cosmetology's examination again, and that the instructions for the examination be amended to fairly advise examinees of the examination's actual requirements and instruct the models not to touch or interfere with their hair, drapes or towels. DONE and ORDERED this 14th day of January, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1982. COPIES FURNISHED: Mr. Lucien A. Jonet 12500 Ulmerton Road, #16 Largo, Florida 33540 Drucilla E. Bell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Samuel Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact The parties stipulated to the fact that the Petitioner has jurisdiction over both Respondents. In addition, Petitioner presented the licensing history of each Respondent which reflected that both possess current appropriate licenses. On March 4, 1985, Respondent, at his shop, accomplished a foil frosting on the complainant, Ms. Young, who had visited Respondent's shop for hair dressing services several times in the past. On each occasion, Respondent worked on her himself giving her over the period three permanent waves and four frostings. Ms. Young was familiar with the frosting process having had her hair done that way since 1967. There are several legitimate ways a hair frosting can be done. One is through a cap placed over the head with strands of hair pulled through small holes and bleached. In the foil frosting method, the affected strands of hair are isolated, bleach is applied, and the bleached hair is wrapped in a piece of foil until done. Frosting can be considered light, medium, or heavy, depending upon the amount of hair that is frosted. Ms. Young usually has a heavy frosting done. The last two times Respondent frosted her hair prior to the incident complained of here, Ms. Young contends her hair came out orange and red instead of blonde. She complained to Respondent about this both in person and by phone and Respondent allegedly told her he would correct the problem by first applying a dye to her hair and then frosting it. On the day in question, according to Ms. Young, Respondent did as he said he would and dyed her hair a deep brown. He then started to frost it even though she advised him at the time the dye had come out too dark. According to Ms. Young, Respondent told her not to worry about it. Ms. Young relates that Respondent left the bleach on her hair almost four hours. He checked her hair several times during that period but did nothing to stop the bleaching process. She contends she told Respondent that she was under the dryer too long but he either ignored her or told her to be quiet. After she became seriously concerned that her hair might be damaged, Ms. Young took herself out from under the dryer and began to remove the foil. At this point, she contends, Respondent came and took her to the wash area where he unwrapped the remaining foil packets and had Ms. Ayotte wash the bleach out of Ms. Young's hair. After this was done, Ms. Young was put back under the dryer and at this point, Ms. Young alleges, when she felt her hair, it had the consistency of taffy . She poked at it with a hair pick and found that large amounts of hair broke off each time she touched it. When she showed this to Respondent, he allegedly stated it was only dead ends coming off. At this point, convinced she would get no satisfaction from the Respondent, she paid him the charge for a frosting and left the shop. Respondent, she claims, refused to do anything more for her at the time but merely told her to go home and put a conditioner on her hair. According to Ms. Young, her hair continued to come out all evening each time she touched it which highly distressed and upset her, a state confirmed by her neighbor. By the following morning, she claims, she had accumulated seven or eight baggies of her hair which had come out. No matter how much she washed it and put conditioner on it, nothing helped and her hair continued to come out. The day after her visit to Respondent's shop, Ms. Young went to a beauty supply house where she was sold a vitamin treatment for her hair which she applied. Several days later she went to the beauty shop run by Ms. Kuhn where her hair was examined not only by Ms. Kuhn but also by Ms. Korman, both of whom concluded that her hair had been overly processed. She was given a procedure to follow for conditioning her hair which was trimmed back to a maximum length of two to three inches all over her head. Ms. Young indicates that the previous frostings she was given by Respondent were satisfactory as to hair texture if not as to color. However, she contends that the procedure he used on this occasion was different than that he used previously. She believes 75 percent of her hair had bleach applied to it. As a result of her dissatisfaction with Respondent, Ms. Young wrote a letter of complaint to DPR followed up by a formal complaint. The resultant file was forwarded to Ms. Markowitz, the local investigator, whose report was forwarded to Ms. Jimenez for consultation. Ms. Jimenez neither examined Ms. Young nor spoke with any of the witnesses involved but, based solely on her evaluation of the file only, which included Ms. Young's written statement, concluded Respondent was guilty of extreme negligence. She based her opinion on Ms. Young's recitation of the procedure followed by Respondent, and she readily admits that if the information given her was not accurate, her opinion would not be valid necessarily. Mr. Bannett does not deny applying a bleach solution to Ms. Young's hair and admits to having done each of her three previous frostings. He contends, however, that she was satisfied each time. 12 As a professional beautician, he has done thousands of frostings over the thirty or more years he has been in the business and has not experienced any problems until this time. He claims to work as a mechanic rather than as an artist in that he does a frosting the same way each time and does not deviate from his procedure. He believes that only through a routine can he effectively accomplish the process successfully. He categorically denies having dyed Ms. Young's hair before frosting it stating that to do so would have been counterproductive. It would require the bleaching of not only the natural hair color but also the dyed and would mean the bleach would have to stay on far too long. In a situation needing a color change, he puts the coloring on the hair remaining uncovered after the application of the foil packs. In a frosting Mr. Bannett starts at the bottom of the head applying the bleach and wrapping the treated area. He then does the sides the same way and works his way up to the top. It takes him about 20 to 25 minutes to accomplish all the treating and wrapping, after which he places the customer under the dryer for another 25 minutes. At that point, after 45 to 50 minutes, he checks the color of the hair. If it appears to be appropriate, he has the bleach washed from the customer's hair. If the color is not right, he replaces the wrapper and lets the bleach stay a little longer. Mr. Bannett contends that when he checked Ms. Young's hair it was right and Ms. Ayotte washed out the bleach. Not only Mr. Bannett, but also Ms. Ayotte and Ms. Ascola, both of whom were present and observed Ms. Young during the process contend she was happy with the result. They also deny that prior to the frosting Ms. Young's hair was orange or red. If Ms. Young was unhappy, they say, it was because of other matters because she left the shop happy with the way her hair looked when Mr. Bannett was through. Unfortunately, though Mr. Bannett indicates he routinely makes records of the service he gives each of his customers, if the customer does not return to the shop within a short period of time, he destroys them. Here, even though Ms. Markowitz interviewed him only slightly more than three months after the incident in question, the records had already been destroyed and he could not recall what was on them. As a result, his testimony is based solely on his limited recollection and his usual routine. It is most unlikely, however, that if Ms. Young were as unhappy as she relates, some other customer in the shop would not have overheard her discussions with Respondent or observed the state of her hair. She presented no evidence other than her own allegations as to what happened in the shop. The other evidence as to the cause of the damage was not incident specific. The over application could have been by anyone, including the complainant. On balance, therefore, it would appear that without question Mr. Bannett did a frosting of Ms. Young's hair on the date alleged. There is also no doubt that the hair was damaged by the improper application of chemicals to it. However, Petitioner has failed to conclusively show that it was Respondent who improperly applied these chemicals.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that the Administrative Complaint in this case against the Respondents Ronald Bannett and Style and Color of Sunrise, Inc., be dismissed. DONE and ORDERED this 10th day of November, 1986, at Tallahassee, Florida. ARNOLD H. POLLOCK 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 10th day of November, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1581 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1-4 Accepted and incorporated. 5-8 Rejected as unproven. 9 Accepted and incorporated. Rulings on Proposed Findings of Fact Submitted by the Respondent Accepted and incorporated. Rejected as irrelevant to resolution of the issues of fact. 3&4 Rejected as recitations of the evidence and not findings of fact. 5 Rejected as commentary on the evidence and not as finding of fact. COPIES FURNISHED: Jane H. Shaeffer, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Robert Fogan, Esquire 2170 S.E. 17th Street Fort Lauderdale, Florida 33316 Myrtle Aase, Executive Director Board of Cosmetology 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings S. Benton, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Petitioner should be issued a license to practice dentistry pursuant to Chapter 466, Florida Statutes.
Findings Of Fact Petitioner Dr. Lester Altman is a licensed dentist in the State of New York who practices dentistry in Brooklyn , New York. He has been in the private practice of dentistry since 1948. (Testimony of Petitioner) Petitioner applied for licensure as a dentist in Florida on two occasions in 1976 and took the necessary examinations for such licenses. On both occasions, he failed to achieve a satisfactory grade of 75 on the clinical examinations. He applied again in March, 1978, and was examined in June, 1978. He was informed by Respondent on July 5, 1978, that he had not achieved a final grade of 75 on the clinical examination and therefore did not qualify for licensure. Petitioner thereafter filed a petition for an administrative hearing which was referred to the Division of Administrative Hearings on July 27, 1979. (Testimony of Petitioner, Case pleadings, Exhibit 13) The June, 1978, clinical examination was conducted in Gainesville, Florida, by a group of examining dentists which consisted of certain members of the Board of Dentistry and other selected Florida dentists. Approximately 75 percent of the group had served previously as examiners. The clinical examination extends for a period of two days and applicants are tested in the areas of cast gold restoration, amalgam restoration, laboratory, denture setup, periodontal evaluation, and professional evaluation. Two separate grades are given for the cast gold restoration, amalgam restoration, and laboratory portions of the examination. Each of the six major parts of the examination is weighted for grading purposes and all scores are considered in arriving at a total score for the test. Each scored portion of the examination receives a grade ranging from 0 to 5, with 5 representing 100 percent and 3 being an average grade of 75 percent. The subject matter of the examination is determined by the Board of Dentistry and the individual grades for each portion of the examination are entered by two examiners on a grading form designed by a professional testing organization in conjunction with the Board for computer scoring. In order to ensure the validity and fairness of the examination, it is necessary that grading procedures be standardized by the examiners. This process is to preclude to the extent possible widely divergent scores being assigned to a particular portion of the examination by individual examiners. Such a standardization process takes place a short time prior to the administration of the examination at which all examiners are in attendance. At that time various criteria are established and the examiners practice grading various parts of the examination using models of teeth, slides, and the like. Grades are compared among the examiners and guidelines are established so that all examiners will be grading on the same criteria. During these sessions, Department Heads and other faculty personnel of the University of Florida Dental School participate and lecture to the examiners. The "professional evaluation" portion of the examination includes grading criteria for clinical judgment, professional judgment, instruments, patient management, clinical examination, and operatory arrangement. "Clinical judgment" deals primarily with the applicant's competence in diagnosing and performing the necessary dental work required in the examination. "Professional judgment" includes considerations of the applicant's concern for and demeanor toward patients as to prevention of pain, courtesy in avoiding appointment delays, and other matters reflecting his interest in the patient. Similarly, the applicant's treatment of his dental assistants is considered in this category. The other areas of patient management, instruments, clinical examination, and operatory arrangement deals with the cleanliness and appropriateness of instruments, extent of dental knowledge and decision making, and treatment of patients. In particular, the areas of clinical judgment, professional judgment, and patient management overlap one another in varying degrees. The professional evaluation segment of the examination is standardized at the early meetings of the examiners by full discussion of the grading criteria among the participants and arrival at a consensus as to uniformity. The examiners are instructed to make notations or check marks on the grading form in cases where a below average grade is entered. The standardization procedures were employed for the June 1978 clinical examination. (Testimony of Hite, Bliss, Santin, (Deposition - Exhibit 2), Dannahower (Deposition- Exhibit 3), Mullens (Deposition - Exhibit 1), Exhibits 4, 8, 12) At the time an applicant reports for the examination, he is assigned a random number which is placed on the various examination forms to provide anonymity. He is assigned his own operatory or treatment area to work in and his own laboratory desk. Various periods of the two-day examination session are spent in the laboratory and clinic areas. Two examiners grade the laboratory work. In the clinic there is an examiner in charge and normally two other examiners who view the candidates's work after each step of the examination and independently enter a grade on the scoring form. After the second examiner has entered the grade, he notes the grade given by the first examiner and, in rare instances where there is more than one grade difference between the two, a third examiner is called in to enter an independent grade of his own. Such an instance did not occur with respect to Petitioner's examination. The "professional evaluation" grade is entered during the last clinic session based on the examiners' observations of the applicants during the cast gold and amalgam restoration and periodontal parts of the examination. The two examiners who grade professional evaluation will have graded the applicant for at least 50 percent of the clinical subjects from which the professional evaluation grade is derived. These examiners also may observe notes or deficiencies entered by other examiners for other clinical portions of the examination and may take these into consideration when entering the professional evaluation grade. Each applicant retains a check sheet throughout the examination on which each step is initialed by the examiner contemporaneously with entry of the grade on the grade sheet to ensure that the applicant has completed each successive step of the examination. The check sheets are monitored by examination assistants to verify that each section of the examination has been completed and graded. There is no place on the check sheet concerning the "professional evaluation" segment of the examination because the grade is entered by the examiners without any prior request from the applicant to be graded in that area. The examiner in charge of the clinic at the time the professional evaluation grade is entered always is one of the graders for that part because he is an experienced Board member. In the case of Petitioner, two Board members graded the professional evaluation part of the examination. (Testimony of Hite, Bliss, Santin (Deposition) Dannahower (Deposition) , Mullens (Deposition), Exhibit 11) After completion of the examination, the scores on the grade sheets are tabulated and weighted to arrive at a final grade. Various statistical studies are made concerning the grading by new examiners to determine if their grading practices produce valid results. The two Board members who graded Petitioner's "professional evaluation" portion of the examination are experienced and considered to be valid graders by Respondent's testing consultant. Each examiner is assigned a number which is entered on the grading form by him at the time he grades a segment of the examination. As a matter of Board policy, the grade for "professional evaluation" is considered by the examiners to be a "3" which is a passing score unless the examiner determines that the grade should be raised or lowered based on the applicant's performance during the examination. Although a computer error was made on a December 1978 examination, none was made on Petitioner's grade sheet for the June 1978 examination. The 1978 computer error was corrected and the applicant was eventually permitted to retake a portion of his examination based on a separate erroneous grading procedure and thereafter obtained a license. The grading form includes blocks at the top of each segment of the examination which the examiner may use to enter his number and a grade for the second time. Although the entry of such items would be helpful in the event there is a conflict in the computer grade marked below the block, such entry is not required of the examiner and would not be "read" by the computer. One of Petitioner's examiners who was examiner Number 5 incorrectly entered the number "4" on the grade sheet portion of the examination. In the opinion of the Board testing consultant, such an entry by an examiner of an incorrect examiner number on the grade sheet would not affect the validity of any grade entered at that time. (Testimony of Hite, Bliss, Santin (Deposition), Dannahower (Deposition, Exhibits 8-9, 11) Petitioner's scores for the June 1978 practical examination were as follows: Amalgam Restoration 81.25; Cast Gold Restoration 70.87; Periodontal Evaluation 79.12; Professional Evaluation 62.50; Laboratory Evaluation 68.75; Denture Set-up 56.25. His overall average for the examination was 72.61. (Exhibit 12) Petitioner was unsatisfactory in four parts of the six-part clinical examination. These were denture setup, laboratory, professional evaluation, and cast gold restoration. Notations or check marks were entered on the grading form by examiners as to the deficiencies which prompted the unsatisfactory grades. As to cast gold restoration, one examiner noted "watch calculus" on the cavity preparation segment, and both examiners checked "margins" and reflected "open contact." Although the latter deficiency obviously existed at the time of the examination, a subsequent check of the patient after the examination revealed that the lack of contact was cured by the passage of time. In the laboratory portion both examiners observed "no contact" in the wax pattern portion, but only one examiner noted bubbles, pits, and sprueing in the casting part of the laboratory work. One examiner entered seven check marks on the denture setup portion of the examination and the other examiner entered four check marks for that part. In professional evaluation, one examiner checked "clinical judgment" and the other examiner checked both "clinical judgment" and "professional judgment." The one who entered a deficiency for clinical judgment did so due to the fact that calculus was present during the cavity preparation portion of the cast gold restoration procedure. The second examiner did not recall why he had entered the professional evaluation deficiencies on the grade sheet. Six different examiners participated in the grading of Petitioner's examination. In four of the nine areas which were graded by two examiners, the same grade was entered by both examiners. In the remaining five portions, the two examiners did not deviate by more than one grade score. Three examiners graded the Petitioner in the three areas of work upon which the professional evaluation grade was based. Two of these three examiners graded the professional evaluation portion of the examination. The patients upon whom Petitioner performed dental work during the examination experienced no pain or discomfort during the examination and are of the opinion that Petitioner treated them in an exemplary and professional manner at that time. (Testimony of Hite, Bliss, Dannahower (Deposition) Santin (Deposition), Weissman, Solomon, Exhibits 8-9, supplemented by Exhibits 5-7) Petitioner's scores for the December 1976 clinical examination were higher that those on the June 1978 examination for laboratory and professional evaluation. They were the same for periodontal evaluation and amalgam restoration. The cast gold restoration score was lower in the December 1976 examination. (Exhibits 12-13) Petitioner has had an active practice for many years in Brooklyn, New York, with an average of 15 to 20 patients per day and an annual gross income of over $100,000. The former owner of a large dental laboratory in New York City which produced dental appliances for Petitioner over many years found him to be extremely competent in the work provided to the laboratory. Several of his patients attested to Petitioner's excellent dental work and professional demeanor, and expressed the desire to have him serve as their dentist in Florida. (Testimony of Tauman, Karlin, Cohen, Solomon, supplemented by Exhibit 5)
Recommendation That Petitioner's application for a license to practice dentistry be denied. DONE and ENTERED this 11th day of December, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Richard Hixson, Esquire Room 1501 - The Capitol Tallahassee, Florida 32301 John P. Fuller, Esquire Fuller, Feingold, Weil and Scheer No. 802 Flagship Bank Building 1111 Lincoln Road Mall Miami, Florida 33139 Florida State Board of Dentistry Attn: Leah Hickel Administrative Assistant 2009 Apalachee Parkway Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION DR. LESTER ALTMAN, Petitioner, DEPARTMENT OF ADMINISTRATIVE HEARINGS vs. CASE NO. 79-1639 BOARD OF DENTISTRY, STATE OF FLORIDA, Respondent. /
Findings Of Fact Petitioner was an applicant for licensure by examination to practice dentistry in the State of Florida. The practical examination, which is the portion here contested, consisted of 11 procedures, each of which is graded separately by three examiners. Petitioner took the dental examination in December, 1983, and obtained a total overall grade of 2.93 (Exhibit 3). A grade of 3.0 is required to pass the examination. He is here contesting only procedures No. 01 in which he received grades from the three examiners of 3, 3, and 0 (Exhibit 1); and procedure No. 05 in which he received grades of 2, 3, and 0 from three different examiners. Examiners for the dental examination are all currently licensed dentists in the State of Florida who have been extensively trained and standardized by the Department of Professional Regulation. A standardization exercise takes place immediately prior to each examination during which the examiners grade identical procedures and discuss any grade variances to eliminate, as far as possible, any discrepancies in interpretation of the grading criteria. Examiners are selected based on their experience as examiners and their ability to grade without extremes of harshness or leniency. Candidates are informed of the grading criteria prior to the examination through the notice to appear (Exhibit 4) and the applicable laws and rules which are sent by the Office of Examiner Services to all candidates prior to the administration of the examination. In procedure No. 01 (Exhibit 1) one of the examiners found caries not removed in the preparation process, noted on the grade sheet where the caries was located, and gave a mandatory zero for this procedure. Although the other examiners did not see this caries, and gave grades of 3, it was in a difficult place to see and feel with the explorer. The examiner who found the caries submitted a note to the monitor (Exhibit 7) to have all decay removed before the tooth was filled and the monitor's notation on Exhibit 7 indicates this was done. In procedure No. 05 (Exhibit 2) which involved cleaning a specified number of teeth, one examiner found stain and root roughness and gave a grade of 2; a second examiner found root roughness and gave a grade of 3; while the third examiner found supra-gingival calculus, root roughness and subgingival calculus, and gave a grade of 0. One of the expert witnesses who testified was the examiner who graded Petitioner a failing grade of 2 on this procedure. Since he did not actually see subgingival calculus but saw stain and felt the rough tooth, he did not give a zero mark which he would have given had he also seen the subgingival calculus. The Notice to Appear (Exhibit 4) and the rules sent to the candidates are clear that all subgingival and supra-gingival foreign particles must be removed and a grade of zero is mandatory if the procedure is not completed, which would include removal of all calculus. The comments on the grade sheets support the grades awarded. Here, two of the three examiners gave Petitioner a failing grade on procedure No. 05 and the fact that only one of the examiners saw the subgingival calculus does not indicate this grade is erroneous. These grades were not very different but merely reflect different degrees of similar conditions as they were observed by the examiners.
The Issue Whether Petitioner is entitled to a passing grade on the dental examination given on June 4-7, 2000.
Findings Of Fact Shahmohamady took the clinical portion of the dental licensure examination on June 4-7, 2000. He received a failing score of 2.98. The clinical portion of the dental examination consists of nine parts: a written clinical, three patient procedures, and five mannequin procedures. The five mannequin procedures consist of the endodontic, preparation for a three- unit fixed partial denture, the Class IV composite, the Class II composite, and the Class II amalgam. Shahmohamady challenges the grades that he received for the preparation for a three-unit fixed partial denture and the Class IV composite. The Department retains examiners and monitors during the examination. The examiners actually grade the clinical procedures performed by the candidates during the examination. The monitors give instructions to the candidates, preserve and secure the integrity of the examination, and act as messengers between the examiners and candidates. The procedures are blind graded independently by three examiners. The examiners do not know the name of the candidates they are grading. Each examiner grades the procedures independently of the other examiners. Discussion among the examiners is not allowed. The three examiners' grades for each procedure are averaged for the overall grade for the procedure. Each examiner must attend and successfully complete a standardization course prior to the examination. The standardization session trains each examiner to use the same grading criteria. After the examination is concluded and the final grades are given, the Department performs an analysis of the examiners' grading to determine the reliability of each examiner's grading. Candidates and examiners do not have contact during the examination. If a candidate has a problem during the examination, he is to alert a monitor. Candidates may fill out a Monitor-To-Examiner Instruction form, advising the monitor of any problem experienced during the examination. The monitor will read the comments of the candidate, and if the monitor agrees with the comments the monitor will write his monitor number on the form and circle the number. The monitor will provide the comment forms to the examiners when they are grading the procedures. Each examiner is to read the comment forms. The examiner is to acknowledge that he has read the forms on the grade sheet by either writing SMN followed by the number of comment sheets he read for all the procedures or by writing under each procedure SMN followed by the number of comment sheets that he read for that particular procedure. Shahmohamady filled out a Monitor-to-Examiner Instructions form on June 6, 2000, for the preparation for a three-unit fixed partial denture procedure and wrote the following: Doctor, As I was prepping tooth #20 on the sital aspect, the gas torch of the Candidate sitting in front of me (one row over) suddenly burst into a 3 foot flame that caused everyone to yell out. I inadvertently looked up and saw the flame without knowing where it was coming from and paniked [sic] and my bur gouged the mesial aspect of #19 (area of box [sic] There is no disagreement among the parties that the incident involving the gas burner occurred and no disagreement that points should not have been deducted for the gouge of the adjacent tooth resulting from the gas burner incident. The clinical procedures are graded on a scale of zero to five, with five being the best score. If an examiner gives a score of less than five, the examiner is to list a comment number, which corresponds to a list of comments for each procedure. The examiner may also list a comment number for things that the examiner observes during the grading, but for which no points are deducted. For procedure 7, which is the preparation of a three-unit fixed partial denture, the comment list to be used by the examiner was as follows: Outline Form Undercut Insufficient Reduction Excessive Reduction Marginal Finish Unsupported Enamel Parrallelism Mutilation of Opposing or Adjacent Teeth Management of Soft Tissue X Additional Comments - Written For procedure 7, Shahmohamady received a score of 5 from Examiner 289, a score of 4 from Examiner 315, and a score of 3 from Examiner 366. Each of the examiners was given the Monitor-to Examiner Instructions form with the note from Shahmohamady concerning the Bunsen burner incident. Shahmohamady challenges the score that he received from Examiner 366. Examiner 366 put numbers 4, 5, and 8 on the comment portion of the grading sheet for procedure 7. Those comments referred to excessive reduction, marginal finish, and mutilation of opposing or adjacent teeth. He indicated that he had read the three comment sheets that were submitted for the mannequin procedures and so indicated by writing "SMN-3" on the grading sheet for Shahmohamady. Examiner 366 did not deduct points for the mutilation of the adjacent tooth due to the Bunsen burner explosion. The grade which Shahmohamady received for procedure 7 is correct and should not be increased. After a candidate receives his grades for the dental examination, he may request an administrative hearing if he fails the examination. When the Department receives a request for an administrative hearing, the Department will regrade the procedures done by that candidate. The top three examiners from the examination based on the post-examination analysis that is done by the Department are chosen to regrade the procedures which are being contested. In addition to regrading candidates who have failed the examination, the examiners also regrade some candidates who have successfully passed the examination in order to ensure the integrity of the regrading process. Shahmohamady challenged the grade he received on procedure 7 and procedure 4; thus his examination was regraded. Each of the grading sheets had the following comment listed on the grading sheet for procedure 7 prior to the regrading: "Ignore nicked adjacent tooth bunson [sic] burner explosion." Procedure 7 was regraded by three examiners, one of whom was Examiner 366. Examiner 366 again gave Shahmohamady a score of three and included comment 4 on the comment section. Examiner 298 gave Shahmohamady a score of 2 for the procedure, included comment 4, and wrote "overtapered" on the grading sheet. Examiner 316 gave Shahmohamady a score of 3 and included comments 1, 4, and 5. Comment 1 referred to outline form. On regrading, Shahmohamady received an overall lower score for procedure 7 than he did in the original grading. Procedure 7 was graded correctly, and Shahmohamady is not entitled to additional points for that procedure. Shahmohamady challenged the score that he received for the Class IV composite restoration. He received an overall score of 2.66. The Class IV composite restoration is a procedure that involves the candidate's ability to cut a section of the tooth off the corner of the biting edge of the front tooth below the level where it contacts the adjacent tooth. The candidate is required to restore the contact and the tooth structure to proper form and function in a tooth- colored material. Based on the expert testimony of the Department's witness, Dr. Dan Bertoch, the restoration done by Shahmohamady was not done properly and would fail prematurely. Examiner 366 opined that Shahmohamady did not appropriately restore the proximal anatomy and the proximal contour. Shahmohamady did not properly perform the Class IV composite restoration procedure and should not be given a passing score for that procedure. Petitioner claims that Examiner 366 consistently graded Shahmohamady lower than the other two examiners. Based on the post-examination statistical analysis performed by the Department, Examiner 366 tied for second place in reliability for scoring. On a scale of 100, he scored 96, which is considered to be excellent. The other two examiners who were grading Shahmohamady clinical procedures scored lower on reliability than Examiner 366. Examiner 366's was a reliable grader and correctly graded Shahmohamady's examination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Shahram Shahmohamady failed the clinical portion of the June 4-7, 2000, dental examination with a score of 2.98. DONE AND ENTERED this 1st day of February, 2001, in Tallahassee, Leon County, Florida. ___________________________________ SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 2001. COPIES FURNISHED: Orlando Rodriquez-Rams, Esquire Lerenzo & Capua 9192 Coral Way, Suite 201 Miami, Florida 33165 Cherry Shaw, Esquire Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1703 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-0792 William H. Buckhalt, Executive Director Board of Dentistry Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701
