STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
In re: The matter of the Revocation )
or Suspension of the License ) CASE NO. 75-241 of Lester P. Greenberg, D.D.S. )
)
RECOMMENDED ORDER
Pursuant to notice the Division of Administrative Hearings by its duly designated hearing officer, K. N. Ayers, conducted a hearing in the above style cause on June 18 and 19, 1975 in Miami, Florida.
APPEARANCES
For Petitioner: William O. Birchfield, Esquire Board of Martin, Ade Birchfield & Johnson Dentistry Post Office Box 59
Jacksonville, Florida 32201
For Respondent: Paul J. Levine, Esquire
Noriega & Bartel, P. A. 2100 First Federal Building
1 Southeast 3rd Avenue Miami, Florida 33131
RECOMMENDED ORDER
By Accusation filed December 24, 1974, and an Amended Accusation filed March 10, 1975, the Florida State Board of Dentistry seeks to revoke or suspend the license of Lester B. Greenberg, D.D.S., (hereinafter referred to as Petitioner or Greenberg) on the grounds that he violated the provisions of Chapter 466, Florida Statutes. At a pre-hearing conference held on May 14, 1975 the Board withdrew some 127 charges alleging various violations of Chapter 893, Florida statutes and the Federal Narcotics Regulations, and the hearing officer granted the Motion of Dr. Greenberg to strike those charges involving events that occurred more than two years prior to the filing of the complaint. Charges remaining at the hearing were that on four separate occasions in 1973 he issued prescriptions for Preludin or Preludin Enduret to a Barbara Schwartz outside the scope of his professional practice; that he issued a prescription for a class
two narcotic, to wit Demoral to Kathy Paterson outside the scope of his professional practice; that he issued a prescription for a class two narcotic to wit Demoral to himself outside the scope of his professional practice; that he issued a prescription for a class two narcotic to wit Ambar Extentabs to himself outside the scope of his professional practice; and that he issued a prescription for a class two narcotic, to wit Ambar to himself on a different occasion than the previous time outside the scope of his professional practice. The final charge against Dr. Greenberg in the original Accusation was that over the past several years he has issued checks to his creditors for purchases and other payments for which there were no funds in his bank accounts; that he had 9 traffic violations since 1969, and has been acquitted on only one of them; that he is constantly being sued for his unpaid bills and has sued others on five occasions in the last twenty years; and that he continues to live beyond his means and beyond the income provided by his practice of dentistry. The latter charges are based on the provisions of Section 466.24(3)(a) Florida Statutes as being acts of a nature to bring discredit upon the dental profession.
In the amended Accusation signed on March 10, 1975 Dr. Greenberg was charged with permitting various assistants to perform unauthorized practices of dentistry under his employment, and to sign his name to dental lab work orders; that he had in his possession at the office a quantity of marijuana which he smoked on various occasions; that he made improper, obscene, and/or sexually suggestive remarks to a female patient while the patient was in the dental chair; that he violated the provisions of Chapter 893, Florida Statutes and Title 21 Code of Federal Regulations in that he had issued some 15 prescriptions for various narcotics in 1973 and 1974 to his wife not in connection with his dental practice.
At the prehearing conference Petitioner's motion to strike all reference to Section 446.24(3)(a) on the grounds that provisions of the statutes, which permitted revocation of a dental license when the holder of the license had committed acts of a nature to bring discredit upon the dental profession are unconstitutional, because they are too broad and indefinite, was denied. Thereafter Petitioner filed an appeal to the District Court of Appeals on the ruling of the hearing officer with respect to the constitutionality of the statutory provision above quoted, and also filed a Motion for an Emergency Stay of Proceedings of the Administrative Hearing. This motion was filed on June 10, 1975. On June 11, 1975 the District Court of Appeal denied the Motion for an Emergency Stay of the Administrative Proceedings.
At the time of the filing the hearing officer believed that the proceedings would be stayed, as did the Dental Board. When the order of the District Order of Appeal was received by the Board on June 12, 1975 the Board had only one working day in which to serve the subpoenas for its witnesses. These subpoenas were served on June 17, 1975,the day prior to the scheduled hearing.
Eleven witnesses testified for the Dental Board and 33 exhibits were offered into evidence. Of those offered into evidence, exhibits 21 through 24 were not admitted upon objection by the Petitioner that they consisted of records of joint bank accounts between Dr. Greenberg and his wife. Petitioner's objection to the admission of exhibit 32, which contained 6 prescriptions supporting charges that occurred more than two years prior to the filing of the Accusation was sustained, and those prescriptions were not admitted into evidence. All other exhibits offered were admitted into evidence without objection with the exception of Exhibit 33, which is a copy of the subpoena served upon Mrs. Barbara S. Kroner, who did not appear at the hearing, and exhibit 34, a statement of Barbara Kroner.
Kenneth Gress of North Miami Beach owns the property where Dr. Greenberg's office is located. Dr. Greenberg is one of his tenants. He has received numerous checks from Dr. Greenberg that were returned due to non-sufficient funds; however, those checks were made good and Dr. Greenberg is current in his rental payment.
Caleb Van Warrington, Jr. is headmaster of the Palmer School in Miami. Previously Dr. Greenberg had his daughter enrolled in that school, and owes the school something in excess of $1,300 for unpaid tuition bills. He produced a check (Exhibit
1) that was executed by Dr. Greenberg in the amount of $600, which had been returned to the school marked insufficient funds. Numerous attempts to collect the bill and have check made good have been unsuccessful.
Barry Post, an Assistant Vice President of the Barnett Bank of Miami offered into evidence Exhibit 15, a check in the amount of $170, payable to the Barnett Bank, which had been returned marked ,"insufficient funds" and had never been made good by the maker, Dr. Greenberg. He also offered into evidence Exhibit 16, which was a check dated May 11, 1973 in the amount of
$893.72, which had been made payable to the bank and returned marked "NSF" and never made good. Dr. Greenberg formerly had a checking account with the Barnett Bank. Bank records introduced as Exhibit 18 shows some 7 checks had been written to various
people and to cash by Dr. Greenberg in amounts ranging from $400 to $2500 at a time when the bank balance shown on the bank records of Dr Greenberg's account was in the order of $40 to $50. All these checks had been returned marked "NSF".
Mrs. Louise Mansfield is the cashier of Southeast Bank of Dadeland, at which Dr. Greenberg had an account until some time in 1973. She introduced Exhibits 19 and 20, pertaining to the account of Dr. Greenberg. She described Exhibit 20 as a work record kept on a daily basis which shows any time an account is in an uncorrected or overdraft condition. Between July 11, 1972 and January 23, 1973 Dr. Greenberg's account was in one of these situations a total of 39 times. Notations appear on several places on this particular record indicating no more overdrafts would be permitted. The witness described the uncorrected condition as those indicating deposits had been made in the bank, but had not cleared at the time of the checks written by Dr. Greenberg. The figures shown in the amount column on Exhibit 20 varied from $52 to something in excess of $2,000, and none of the amounts shown were less than $50. Of the 39 entries on Exhibit 20, 9 were marked "NSF" for insufficient funds at the time the check was presented for collection.
Three of the witnesses who appeared operate dental laboratories and make teeth, bridges, etc. for dentists. Edward Bell of Gables Dental Laboratory had many of Dr. Greenberg's checks be returned for insufficient funds during the past several years and prior to the time of the hearing had put Dr. Greenberg on a C.O.D. or certified check basis. At the time of Dr. Greenberg's filing of bankruptcy he owed Gables Dental Laboratory approximately $400.
Harry M. Miller, the owner of Miller Crown and Bridge has been doing business with Dr. Greenberg for about one and a half years. Originally he had Dr. Greenberg on a 30-day account; however, after failing to collect on numerous of his billings he now provides service on a C.O.D. basis only. He produced 7 checks which were introduced in evidence as composite Exhibit 25 for checks that had been written to him by Dr. Greenberg and returned marked "NSF". These checks ranged in amounts from $1,000 down to $300. Mr. Miller is still hoping to collect on those checks.
Mr. Harry C. Botwin, with Ken-Dade Dental Lab, has done work for Dr. Greenberg for about five years. He has had trouble negotiating checks which Dr. Greenberg gave him in payment for work. Exhibit 26 is two checks dated February and April, 1973 that
he had returned marked "NSF" and have not been made good. These checks are for $500 and $600 respectively. Exhibit 27, which contained 4 checks that had been returned marked "NSF" in March, June, and September, 1973, was admitted into evidence; however, all of these checks have now been paid. Mr. Botwin has used Dr. Greenberg for dental work for his wife, and his wife was satisfied with the dental treatment. His claim against Dr. Greenberg was reduced by the amount of the dental services provided.
Ariel R. Dreyfus, Jr., D. D. S. sold his practice in Miami to Dr. Greenberg approximately two years ago. The balance of the payment owed him after the down payment was to be paid on a monthly basis over the next four years at $454 per month. Dr. Greenberg paid him the first two or three months, and he has received nothing since that time. He presented two checks dated August 27, 1973 in the amount of $454.98 into evidence as Exhibit
Both of these checks had been returned from the bank marked "NSF" and neither has been made good by Dr. Greenberg.
Mrs. Sherill Holderith of Miami was a dental patient of Dr. Greenberg in June and July, 1973. She had a crown installed. This work occurred over a period of about three visits. During one or more of her visits Dr. Greenberg made comments she considered unnecessary and offensive. This was to the effect that he wish that she had on see-through type clothing. He also inquired if she liked being single better than being married, and further inquired if she would be interested in extramarital activities. On one occasion he inquired if she liked Ray Charles music, when she replied "yes" he put on a tape of the singer. During the playing of the tape stated that Ray Charles got so wrapped up in his singing that he had orgasms during a performance. On one occasion during the course of work on her teeth he put the instruments with which he was working on her chest without a tray under those instruments. Although there was no overt touching, she felt this was improper as the instruments were resting at the upper edge of her bustline. Mrs. Holderith did not make any response to Dr. Greenberg when he made those remarks she considered offensive, hoping to pass off the incident and ignore him. The comments regarding Ray Charles she considered both offensive and embarrassing to her.
Olivia Fairbrother was employed by Dr. Greenberg on two occasions, first from November, 1972 until May, 1973, and then in September, 1974 until April, 1975. She was a chairside assistant to Dr. Greenberg and had no formal training, only on-the-job training, mainly by Dr. Greenberg. On one occasion during her second employment with Dr. Greenberg she made an alginate
impression for a patient under the supervision of Dr. Greenberg. She made out work orders to the dental laboratory as directed by Dr. Greenberg and signed his name to those work orders. She further identified Exhibits 2 through 9 as work orders signed with Dr. Greenberg's name, some of whom were signed by Dr. Greenberg, and others signed by various other persons in the office. Exhibit
2 contained more than 100 work orders, the vast majority of which were signed by one of the office employees in Greenberg's name. The parties stipulated that with respect to Exhibits 3 through 9, which were admitted into evidence, the witness would testify that the same percentage of those work orders would be signed by Dr. Greenberg as were signed by him on Exhibit 2. Miss Fairbrother testified that other employees in the office took dental impressions under Dr. Greenberg's supervision and direction. She recalled giving a statement to the investigator or the Dental Board to the effect that she smelled marijuana in the office and saw Dr. Greenberg smoking marijuana ire the office after hours; however, she now contends that she couldn't say for a fact that what she smelled was marijuana. She indicated that her statement to the investigator that she saw and smelled "pot" in the office, and saw Dr. Greenberg smoking "pot" was not necessarily true. Miss Fairbrother considers Dr. Greenberg to be the nicest man she has ever worked with, and considers him a very fine dentist. She also identified Exhibit 10, which is a bridge with the name "Pat Fuller" on the back, and Exhibit 11, which is a bridge apparently made for a patient named Levitiski and Exhibit 12, which was
marked an envelope containing a broken bridge. This bridge made by Gold Crown Laboratory, which was marked Exhibit 10, was not paid for by Dr. Greenberg because the work was defective.
Ms. Dorothy Tower was employed by Dr. Greenberg in April, 1973 for a period of about one month. She testified that one afternoon after work Dr. Greenberg offered her a cigarette which he said was marijuana. She took one or two puffs on the cigarette. At the same time Dr. Greenberg was taking puffs on a similar cigarette which he told her was marijuana. After approximately one month with Dr. Greenberg she was dismissed from his employment. During her employment numerous phone calls were received from various people claiming that Dr. Greenberg's checks would not clear, and demanding that they be repaid. She does not like Dr. Greenberg or his lifestyle.
Dr. Dreyfus also testified as an expert witness. He had a one year residency in anesthesiology. When asked to identify the various drugs for which Dr. Greenberg had written prescriptions Dr. Dreyfus did not know the composition or use of many of those drugs which go by a trade name. He was not certain
of the characteristics and use of Preludin or Amber Extentab, both of which had been prescribed in the remaining valid charges filed against Dr. Greenberg.
The parties stipulated to the admission of Exhibit 31, a voluntary petition in bankruptcy filed by Lester Bernard Greenberg in the United States District Court for the Southern District of Florida on December 13, 1974.
The Board called Barbara Kroner to the witness stand; however, Mrs. Kroner was not present in the hearing room. The Board them offered into evidence as Exhibit 33, a copy of the subpoena with notation of service upon Mrs. Kroner on June 17, 1975. The respondent objected to the admission of the subpoena on the grounds that it was not dated and the copy which was offered into evidence did not indicate that the copy served upon Mrs. Kroner had been signed by the issuing officer. At the time the hearing officer reserved ruling upon the admission of Exhibit 33. The Board requested a continuance of the hearing on the grounds that Mrs. Kroner was an essential witness to this proceeding and had failed to answer the subpoena. The parties agreed to investigate the matter and obtain from Mrs. Kroner the subpoena actually served upon her and to advise the hearing officer whether or not the subpoena served upon Mrs. Kroner was a copy of the signed subpoena. The hearing officer reserved ruling on the Board's motion to continue the hearing pending results of the report from the attorneys in this matter. Subsequent to the hearing the parties have both advised the hearing officer that the subpoena that had been served upon Mrs. Kroner was a copy of one that had not been executed by the Secretary-Treasurer of Florida State Board of Dentistry i.e., that it was not a conformed copy of the original subpoena which was present at the hearing and had been signed by James C. Tyson, Jr., D.D.S., as Secretary- Treasurer, Florida State Board of Dentistry.
The Board offered into evidence as Exhibit 34, the signed statement of Barbara Kroner taken by the investigator for the Board during the investigation of the charges against Dr. Greenberg. Admission of Exhibit 34 into evidence was objected to by the attorney representing Dr. Greenberg and the hearing officer reserved ruling upon the objection. The hearing officer now rules that Exhibit 34 will not be admitted into evidence.
Dr. Greenberg presented five witnesses in defense.
Robert A. Sterling, D. D. S. is president of the South Dade Dental Society. He has known Dr. Greenberg for approximately
ten years and has witnessed Dr. Greenberg's dental work. He considers Dr. Greenberg to be an above-average dentist. He is familiar with the dental lab work orders and in his office has had his assistants sign his name to those work orders. He does not consider that 466.34 Florida Statutes precludes an office assistant from signing the dentist's name to a dental work order. Dr. Sterling expressed the opinion that financial difficulty of a dentist would not bring discredit on the dental profession , and he considered a check returned marked "Not Sufficient Funds" not to be a financial difficulty. Dr. Sterling generally contended that acts of misconduct by a dentist not related to his actual professional practice would not bring discredit upon the dental profession, but only an embarrassment to the individual or to the profession. He opined that a dentist's personal life and actions should be separated completely from the practice of dentistry, and acts that were of a nature that would bring discredit upon the dental profession would be only those acts involving bad dentistry.
Alfred Viener, D. D. S. is an Oral Surgeon who has known Dr. Greenberg for approximately 15 years. He employs assistants in his office who are not licensed and occasionally allows them to remove sutures, take x-rays, make impressions, etc. He considers it proper for unlicensed personnel to perform certain work under the direct supervision of a dentist. He does not consider the financial problems of Dr. Greenberg to be such as to constitute a discredit to the dental profession. He considers Dr. Greenberg's work to be well above average. He also considers it appropriate for his office personnel to sign his name to dental work orders if he dictates the order. He recognizes that Section 466.34 Florida Statutes does not authorize anyone other than the dentist to sign the work order. He further propounded the opinion that what he considers to bring discredit upon the dental profession is bad dentistry.
Samuel Berkowitz, D. D. S. is an Orthodontist who has known Dr. Greenberg since 1959. He considers Dr. Greenberg to be a close friend, and has a strong intra-professional association with him. He had seen many of Dr. Greenberg's patients and recognizes the quality of his work. He sends patients to Dr. Greenberg and considers him to be well above average in the dental profession.
Robert Hively is a professor at the University of Miami who also holds a degree in Optometry. He has been in the teaching profession for approximately 20 years. He had Dr. Greenberg in one of his contemporary literature classes some years ago and
became acquainted with him. Since that time he has used Dr. Greenberg as his dentist and is satisfied with his work. With respect to what constitutes offenses that could bring discredit to the dental profession, Dr. Hively expressed his opinion that only things involved in his actual dental work should be considered in this regard. Dr. Hively opined at great length that he did not believe professional people should be required to adhere to any higher standards of conduct than a nonprofessional.
John Keesler is a newsman who uses Dr. Greenberg as his dentist. He became acquainted with Dr. Greenberg when Dr. Greenberg attended a class in creative writing he teaches at the University of Miami. He has known Dr. Greenberg at least five years and he uses Dr. Greenberg as his family dentist. He is satisfied with the dental work he has received from Dr. Greenberg and considers him to be a very capable dentist. He does not consider the bankruptcy proceeding would reflect adversely on the dental profession. However, he did acknowledge that writing had checks could, under certain circumstances, adversely affect the dental profession. He considers that professions are generally held in higher esteem than other occupations and that members of professions should adhere to standards of conduct somewhat above the level of the nonprofessional.
CONCLUSIONS OF LAW
Inasmuch as the attorneys for the parties herein involved have each advised the hearing officer that the subpoena served upon Barbara Kroner was not a conformed copy of the original signed subpoena, there was no proper service upon Mrs. Kroner. Furthermore, Exhibit 34, the statement of Barbara Kroner was not under oath as required by Section 120.68(1)(a), Florida Statutes and therefore is inadmissible. It was also hearsay and not subject to cross-examination. The only other evidence offered with respect to the charges that Dr. Greenberg prescribed Preludin to said Barbara Schwartz outside the scope of his dental practice was Exhibit 30, which consisted, in part, of 4 prescriptions made out for Barbara Schwartz. Absent any evidence that Preludin is not used in the normal course of the practice of dentistry, the prescriptions above cannot support a finding of guilty of those charges.
No evidence was presented with respect to the charge that Dr. Greenberg prescribed Demerol to Cathy Paterson outside the scope of his dental practice other than the one prescription included in Exhibit 30. Dr. Greenberg must be found not guilty with respect to this charge.
With respect to the three charges that Dr. Greenberg issued prescriptions for Demerol and Ambar to himself, outside the scope of his dental practice, the three prescriptions were admitted into evidence in Exhibit 30. The only other evidence presented with respect to these charges was the testimony of Dr. Dreyfus that Demerol is a pain killer, but he was not familiar with Ambar. No evidence was presented that these drugs were not used by Dr. Greenberg in the normal course of his dental practice. Obviously Demerol could be so used and the hearing officer cannot take official notice that Ambar is an antihistamine which would rarely, if ever, be used in the practice of dentistry. While Section 893.13(1)(e) , Florida Statutes, makes it unlawful for any person to be in possession of a controlled substance unless it was lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while acting within the scope of his professional practice here, there was absolutely no evidence that prescribing these drugs to himself was not done within the scope of Dr. Greenberg's dental practice, or that they were not used by Greenberg within the normal course of hid dental practice. Section 893.13(4)(b) Florida Statutes provides that the penalty provisions of Sections (1)(2) and (3) of this Section shall not be applicable to:
"(b) The actual or constructive possession of controlled substances for such [business or professional] use by such persons or their agents or employees, to wit:
2. Practitioners"
Accordingly Dr. Greenberg must be found not guilty of these charges.
The final charge on the original complaint was that Dr. Greenberg violated the provisions of Chapter 466, Florida Statutes by (1) writing bad checks (2) having eight convictions of traffic violations since 1969 (3) constantly being sued for unpaid bills and suing others, and (4) continuously living beyond his means.
To authorize the revocation of a license by the Dental Board the above charges must constitute conduct either in his business or his personal affairs which would bring discredit upon the dental profession. No evidence was offered with respect to items (2) ,
(3) and (4) above. Accordingly, they cannot form a basis upon which to make a finding that such conduct is of a nature to bring discredit upon the dental profession. As more fully noted below in the discussion of conduct of a nature to bring discredit upon the dental profession it would appear extremely doubtful that
facts pertaining to allegations (2), (3), and (4) above could be presented which would constitute conduct of a nature to bring discredit upon the dental profession.
The charge under item (1) in the preceding paragraph regarding bad checks will be discussed later in this recommended order.
Under the Amended Accusation served upon Dr. Greenberg, charges 2(a), 2(b), and 2(c) allege that he permitted, or required three unlicensed employees to (1) take alginate impressions of some or all of various patient's teeth; (2) remove excess cement from crown and permanent bridgework cemented into patients mouths by Dr. Greenberg; (3) apply flouride to the teeth of infant patients; and (4) sign work orders to various dental labs. With respect to one of the three employees above the amended complaint further alleges that Sherri Sickle cemented partial temporary crowns in place and a three-bridge unit in the mouth of one patient. Only one witness testified with respect to these allegations and she testified that she had taken one alginate impression and had observed one other unlicensed assistant take impressions and cement a temporary bridge in the mouth of one patient. She further observed Dr. Greenberg's employees placing fingers in the mouths of patients. During these evolutions Dr. Greenberg was in the room overseeing the procedures. All of the named employees signed Dr. Greenberg's name to dental work orders and he dictated the work orders to which his name was subscribed by an employee. Several hundred such work orders were admitted into evidence. No evidence to contradict this testimony was offered. Accordingly so much of these charges as this witness testified to must be found to be proven.
Three dentists testified on behalf of Dr. Greenberg that the practice of employees signing the dentist's name to dental . lab work orders was common in the dental profession. With respect to the work orders, Section 466.34 Florida Statutes provides in pertinent part:
"This form [work order] shall be dated and signed by such dentist and shall include the patient's
name or number with sufficient descriptive information to clearly identify the case for each separate and individual piece of work; ...
Section 466.24, Florida Statutes provides in pertinent part:
"The board shall suspend or revoke the license of any dentist or dental hygienist when it is established
to its satisfaction that he:
(3) Has been guilty of:
(e) Employing or permitting any unlicensed person or persons to perform any work in his office
which would constitute the practice of dentistry or dental hygiene, except a dental auxiliary pursuant to the provisions of this chapter;
(n) Violating any other provision of this chapter regulating the practice of dentistry or dental hygiene."
No evidence was submitted that taking alginate impressions or cementing bridgework constitutes the practice of dentistry. In view of the testimony of other practitioners that this practice is a regular occurrence, Dr. Greenberg must be found not guilty of this charge.
The testimony of these witnesses regarding their interpretation of Section 466.34, Florida Statutes is not persuasive. The words of this statute as quoted above are clear and unambiguous in stating that work orders shall be signed by the dentist. Accordingly, Dr. Greenberg must be found guilty of this charge.
No denial or rebuttal of the testimony of Mrs. Holderith was offered; accordingly, it is found that Dr. Greenberg made the comments the patient found to be offensive and embarrassing. Such conduct of a nature to bring discredit upon the dental profession which will be discussed infra.
Those accusations that Petitioner wrote prescriptions in his wife's name for Ambar Extentabs, Quaalude, Dilaudid, Eskatrol, Levo-Dromoran, Demerol, and Seminal/Forte, were supported by the prescriptions. Evidence submitted with respect to these drugs was that Quaalude, Dilaudid, and Demerol could be used in the practice of dentistry. No evidence was offered with respect to the other drugs. Accordingly Dr. Greenberg must be found not guilty of these accusations.
The primary legal issue raised in this hearing involves a determination of conduct of a nature to bring discredit upon the dental profession. Section 466.24(3) Florida Statutes provides
that the Board shall suspend or revoke the license of any dentist who has been guilty of:
Misconduct either in his business or in his personal affairs which would bring discredit upon the dental profession,..."
Prior to the 1961 amendment to the Florida Statutes, the license could be revoked if the board found the dentist guilty of, inter alia, gross immorality.
In the first instance it is to be noted that the acts providing the grounds for revocation or suspension of the license must be misconduct. Accordingly, suing or being sued and living beyond one's means would rarely amount to misconduct. Traffic violations constitute misconduct, but would not reach the level of misconduct which would bring discredit upon the dental profession.
Making sexually suggestive remarks to a female patient undergoing treatment would constitute misconduct only if the dentist is required to adhere to a higher standard of conduct than is a shopkeeper, for example, who made the same comments to a customer. The statutory provision relates to misconduct in business or personal affairs, therefore determination of those acts which would constitute misconduct for a dentist in his personal affairs should be based upon the same standards that are applied to determine misconduct in his business affairs, i.e, his professional practice.
Boards and courts have wrestled with the type of conduct the legislatures have determined to be grounds for revocation of a license for many years. In many states the statutes authorize the revocation of a license for unprofessional, immoral, or dishonorable conduct. Under most of these statutes disciplinary action may be taken against a medical or dental practitioner because of acts not directly connected with hips technical competency to practice, but which only evidence weaknesses of character which are regarded by the licensing authorities and the courts as inconsistent with the general standards of the profession. Some acts unrelated to the technical competency of the licensee which have been held grounds for revocation of license include: contempt of congress (Barsky v Board of Regents,
111 NE 2d 222 N.Y. (1953)); evading income taxes (State v Margoles 124 NW 2d 37 (Wisc. 1963)); possession of counterfeit money with intent of corrupting the currency (State Medical Board v Rogers 79 SW2d 83 (Ark. 1935));using mails to defraud and selling bogus licenses (State ex rel March v Davis 196 So 491
(Fla. 1940)); misdemeanor offense of larceny under trust, (Lewis v State Board of Medical Examiners, 99 SE 147 (Ga. 1919)); and manslaughter, (Board of Governors of Registered Dentists v Brown
76 P2d 1074 (Okla. 1937)). In many cases the boards have revoked licenses for the commission of offenses involving moral turpitude when the offense was unrelated to the licensee's practice.
40 Here there was evidence of uttering numerous checks for which the petitioner did not-have adequate funds in the bank to cover when presented for payment. These were not isolated instances which could result from slight inattention to the checkbook balance, but involved checks written for several hundred dollars at a time the maker had less than one hundred dollars in his account. Under the circumstances and considering the number of bad checks written, Dr. Greenberg is presumed to have known the checks would be dishonored when presented for payment or was so grossly negligent in the maintenance of his account as to demonstrate utter disregard to the consequences thereof. Section
832.05 Florida Statutes provides that it is unlawful for any person to utter a check knowing at the time of uttering that the maker does not have sufficient funds on deposit 9with which to pay the check when presented. Violation of this provision involving a check of $50 or more is a felony in the third degree punishable by a maximum of five years imprisonment. Such an offense involves moral turpitude and constitutes misconduct of a nature to bring discredit upon the dental profession. This finding is wholly unrelated to the petitioner filing bankruptcy proceedings which under the facts herein presented could in no wise be found to be misconduct.
From the foregoing it is concluded that petitioner is guilty of Accusation 7(a) of the original complaint; and Accusations 2(a)(1)(4) , 2(b)(1) , (2) , (4) , (5) , & (6) , 2(c)(1) & (4) ,
2(d) and 2(e) of the amended complaint; and not guilty of all other accusations. It is further concluded that the most serious accusation proved involves Accusation 7(a) of the original complaint. It is therefore
RECOMMENDED that the license of Dr. Greenberg be suspended for a period of six months.
ENTERED this 14th day of August, 1975 in Tallahassee, Florida.
K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
(904) 488-9675
COPIES FURNISHED:
William O. Birchfield, Esquire Martin, Ade, Birchfield & Johnson
P. O. Box 59 Jacksonville, Florida
Paul J. Levine, Esquire Noriega & Bartel, P. A. 2100 First Federal Building
1 S. E. 3rd Avenue Miami, Florida 33131
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF PROFESSIONAL AND OCCUPATIONAL REGULATION STATE BOARD OF DENTISTRY
In re: The matter of the Revocation
or Suspension of the License CASE NO. 75-241 of Lester P. Greenberg, D.D.S.
/
AMENDED ORDER
This matter came to be considered by the State Board of Dentistry on November 8, 1975, in Tampa, Florida, upon terms and conditions of the Stay Order issued October 27, 1975, for the purpose of allowing LESTER B. GREENBERG, D.D.S., and his counsel to appear before the Board to be heard on the Recommended Order and Exceptions thereto, filed on behalf of Dr. Greenberg, and the Board having heard extensive argument by Dr. Greenberg and his counsel, it is hereby the finding of the Board that:
The Board of Dentistry confirms its Findings of Fact and Conclusions of Law contained in its Order issued September 20, 1975.
The Board of Dentistry confirms that a complete review of the entire record in this cause has been made by each member of the Board. Based upon this complete review it is the express finding of the Board that the conclusion reached by the Hearing Officer on page 10 of the Recommended Order, that the most serious accusation proved against Dr. Greenberg involves the issuance of checks for which there was insufficient funds in his bank account, was based upon competent, substantial evidence.
Section 466.34, F.S., requires work order forms to be signed by licensed dentists and it is not customary practice throughout the State for such forms to be signed by dental assistants, which practice Dr. Greenberg freely admitted to the Board he allowed to take place in his office.
The cumulative effect of Dr. Greenberg's misconduct, was reflected in the record of this proceedings, in his personal and business affairs does bring discredit upon the dental profession.
Rule 21G-3.03(b), F.A.C., requires the Board to consider leniency for first offenders and the Board finds that this matter is the firs disciplinary proceeding to come before the Board involving Dr. Greenberg.
NOT THEREFORE, it is hereby ORDERED AND ADJUDGED that:
The license to practice dentistry in the State of Florida previously issued to LESTER B. GREENBERG, D.D.S., is hereby suspended for a period of twelve months from the date of issuance of this Amended Order, and those portions of the previously Order issued by the Board in this matter on September 20, 19975, are hereby superseded by this Amended Order to the extent that the penalty provided for therein is inconsistent with, or in conflict with, the penalty provided therein.
The Board has not, to date, received any timely application for a stay of this Amended Order and therefore makes no ruling on a stay of this Amended Order at this time.
This Amended Order shall be considered "final agency action" within the meaning of 120.68, F.S.
DONE AND ORDERED this 17th day of November, 1975 by the State Board of Dentistry.
JAMES C. TYSON, D.D.S.
Secretary-Treasurer Board of Dentistry
COPIES FURNISHED:
Paul J. Levine, Esquire Noriega & Bartel, P. A. 2100 First Federal Building
1 S. E. 3rd Avenue Miami, Florida 33131
Donald Conn, Esquire Assistant Attorney General Department of Legal Affairs 725 S. Calhoun St.
Tallahassee, Florida 32304
| Issue Date | Proceedings |
|---|---|
| Feb. 04, 1977 | Final Order filed. |
| Aug. 14, 1975 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 17, 1975 | Agency Final Order | |
| Aug. 14, 1975 | Recommended Order | Respondent wrote checks with insufficient funds, filled and issued numerous prescriptions for narcotics, and made suggestive remarks to patient. Recommend suspension. |
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs JERRY CLIFTON LINGLE, M.D., 75-000241 (1975)
DEPARTMENT OF HEALTH, BOARD OF NURSING vs JUDIMITH BARBARA HERNANDEZ-CHANG, R.N., 75-000241 (1975)
DEPARTMENT OF INSURANCE AND TREASURER vs RANDY LEE POMERANTZ, 75-000241 (1975)
ROSE SELLOW vs PICERNE DEVELOPMENT ASSOCIATES, 75-000241 (1975)
