STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOARD OF DENTISTRY )

)

Petitioner, )

)

vs. ) CASE NO. 76-792

)

FRANK VELEZ, JR., D.D.S. )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled cause on August 17, 1976 at Winter Park, Florida.

APPEARANCES

For Petitioner: James O. Brecher, Esquire and

William Kachergus, Esquire TAYLOR & BRECHER

605 Florida Theater Building

128 East Forsyth Street Jacksonville, Florida 32202

For Respondent: J. Russell Hornsby, Esquire

311 North Rosalind Avenue Orlando, Florida

By accusation filed April 12, 1976, the Florida State Board of Dentistry seeks to revoke, suspend, or otherwise discipline the license held by Frank A. Velez, Jr., D.D.S. to practice dentistry in the State of Florida.

Dr. Velez was not present. At the commencement of the proceedings the Board's motions to dismiss Count III and to make minor amendments to Count II were granted.

In Count I of the accusation it is alleged that Velez has violated the laws of Florida and the standards of his profession by being grossly incompetent and unfit to continue the practice of dentistry in that dental services performed on patients by him are below the minimum acceptable standards of dentistry in this state. In Counts II, IV, V, VI, VII, VIII and IX it is alleged that on patients Langley, Livermore, Marrone, Thomas, Gier, McCampbell and Laursen, Respondent did not properly provide dental care and improperly prepared and attempted to fit and allow use of prosthetic appliances of less than the minimum acceptable standards of this state in the oral cavity of the patient, these acts constituting gross neglect and malpractice in violation of Florida Statutes.

Count IV also alleges that Velez has been guilty of misconduct in his professional and business affairs in such a manner as to bring discredit upon

the profession of dentistry. In support of this allegation it is alleged that when Estella Livermore went to Velez in response to an advertised fee of $98 for a full set of dentures, the patient was convinced to purchase the $150 "deluxe" set of dentures, which acts constituted deceptive and unfair trade practices by Velez.

Counts V, VI, VII, and VIII further allege that Velez violated the Florida Statutes in permitting office personnel unlicensed by the Florida State Board of Dentistry to perform dental work constituting the practice of dentistry or dental hygiene.

Counts VII and IX also allege that Respondent was guilty of malpractice, gross neglect and gross incompetence in improperly treating Georgia McCampbell and Margaret B. Laursen.

Count IV further alleges that Respondent was guilty of malpractice and gross negligence in negligently and improperly diagnosing, treating, and following up treatment of the oral cavity of Margaret B. Laursen.

Counts X, XI, and XII allege that Respondent has violated the laws of Florida and standards of his profession by advertising his professional services and fees to Mr. and Mrs. Robert Laursen, Mr. and Mrs. James Stone, and in permitting and allowing distribution of a letter regarding denture service and purported cost of this service to persons not patients of Velez and not soliciting the information.

FINDINGS OF FACT

1. Frank A. Velez, Jr., D.D.S. has been registered with the Florida State Board of Dentistry since 1967. His latest address on file with the Board is 4640 Orange Blossom Trail, Orlando, Florida. The records of the Board show no licensed hygienist with the same address as Velez or that any licensed personnel are employed by Velez.

   
   

2. In November, 1973 Mrs. Margaret B. Laursen went to Dr. Velez for professional services. Velez performed a root canal and took impressions for a partial plate. When the patient returned for the bridge work to be inserted in her mouth Velez removed a tooth before putting in the plate. When the plate was inserted it did not fit and despite several visits to Dr. Velez for adjustment, the plate could not be worn because of the pain and discomfort caused with the plate in place. Finally, in August, 1974, she went to Dr. Barnes. Upon examination Dr. Barnes observed a large root tip which had been left in the cavity from which the tooth was extracted. This root tip was visible without x- ray. The root tip that had been removed and the x-ray showing the root tip were admitted into evidence as Exhibits 5 and 6. After extracting the root tip and adjusting the partial plate Dr. Barnes could not make the partial plate fit, largely because an extension had been added to the plate to take care of the space caused by the extraction of the molar from which the root tip had been left. Dr. Barnes further found that the crown which had been placed on the tooth used to anchor the partial plate had been cracked and the plate could not be securely attached thereto. Since the partial was sitting on top of the root tip at the time it was being fitted by Dr. Velez, the pain would not allow the partial to fit comfortably.

   
   

3. Mrs. Estella Livermore saw a brochure from Dr. Velez on a bulletin board in the trailer park where she resided. Therein it said that he would make a full set of upper and lower dentures for $98. Needing dentures she visited

   Velez in January, 1976. Upon arrival she talked to Velez and the secretary who showed her two sets of teeth; one the $98 set and the deluxe version at $150.

   As a result of the conversation she authorized Velez to make her a $150 set. At this time Mrs. Livermore had been wearing dentures for about 30 years. On her initial visit impressions were taken and about a week later she went back when the plates were ready. When the new dentures were placed in her mouth she couldn't eat, drink, or talk with them. At Velez's insistence she tried to wear them, but couldn't even drink water with the teeth in. After complaining to Velez he stated that he would make another set. When the other set was prepared they appeared to fit worse than the first set. They were impossible to wear.

   She called Velez and he stated he couldn't do anything about it. Telephone calls to his office were answered by a recording. Subsequently, she and her husband went by his office to wait him out. When he appeared he was angry because she had not called for an appointment and wanted to know if she wanted him to take some material off the plates. When Mrs. Livermore replied that she didn't know, he took the teeth into his lab for a short while and when he returned shoved them in her mouth and escorted her out. His nurse told her if she came back he would charge her $10 per visit. The teeth still could not be used by Mrs. Livermore and when she complained to the dental society she was referred to Dr. Waldheim, Assistant Secretary Treasurer of the State Board of Dentistry. In February, l976 Dr. Waldheim examined Mrs. Livermore and found the dentures to be oversized with a poor occlusion. The dentures were inadequate for the patient and could not be adjusted to fit.

   
   

4. Mrs. Georgia McCampbell visited Dr. Velez in late November, 1975 to have teeth pulled and dentures made. He took impressions of her teeth and approximately one week later when she returned several teeth were extracted and both upper and lower dentures were inserted. The lowers fit badly and would not stay in place. Her next appointment was one week later. During this period of time the dentures were burning and hurting very badly and when she went back for her appointment she did not see Dr. Velez, but was seen only by an assistant.

   By this time her gums inflamed and abscessed. She told the assistant she had an appointment with Dr. Velez, but was advised that since she was late for her appointment with Velez she could not see him. One of the assistants attempted to fit the dentures by putting them in, but they were hurting too much for her to wear. A few days later she went to Dr. Ford. When Dr. Ford examined Mrs.

   McCampbell he found the incision extended from second molar to second molar across the lower front part of her jaw. The wound was open and the jawbone was exposed. A pus-like material was observed in the gum. Her temperature was slightly elevated at 99.2 F. He treated her with antibiotics. Mrs. McCampbell advised Dr. Ford that she had teeth removed ten days before and had been back on three occasions but was unable to see the dentist. She could only see a dental assistant. Dr. Ford expressed the opinion that where six or eight teeth in a row are removed sutures would normally be indicated. Three days later upon her return she was beginning to heal and he removed some bone fragments from the jaw. The incision made when the teeth were removed healed in about three weeks. His examination of the dentures that had been made for Mrs. McCampbell showed they were too large and the jaw would not properly close with the dentures in the mouth.

   
   

5. Dr. George A. Woodruff, D.O.S., in Titusville knew Dr. Velez when he was practicing in Titusville some two and a half to three years ago and had patients in common with Velez. One of these patients, Sue Flenniken, visited his office in May, 1972 with gum abscess. She advised him that Velez had proposed to treat her with a root canal. In Dr. Woodruff's opinion a root canal would not have helped in her case, as the gum was abscessed. Some two months later the tooth flared up again and extraction was required.

6. Another client shared with Dr. Velez was one Hazel Todd. She was experiencing problems with a Velez-constructed bridge held by three teeth on which root canals had been done by Dr. Velez. Upon examination Dr. Woodruff found the root canal treatment inadequate. One was underfilled just short of the tip of the root, the other two overfilled with the filling sticking out of the end of the root. This was clearly visible in the x-ray. Dr. Woodruff opined, that the three root canals done at the same time on three teeth in a row was contraindicated. Normally when a patient has sensitivity in an area proper treatment would be to narrow down the sensitivity and then do a root canal on the tooth most suspect to see if that cured the problem before proceeding to treat the other teeth.

   
   

7. Mrs. Amelia Thomas visited Dr. Velez in June, l976 for replacement dentures. After she paid half of the quoted price a dental assistant took the impressions from which the new dentures were made. On this visit Dr. Velez did not take any impressions. When she returned a week or ten days later to pick up the teeth she was advised that she had to pay the balance of the amount owed on the teeth prior to having the teeth fitted. When she questioned paying for the teeth before trying them Dr. Velez told her abruptly that is the way that he did it. After she made the balance of the payment the teeth were tried in her mouth. They did not fit well and she could not bite comfortably. Velez took part of the material off the teeth and told her to try them out and come back a week or so later for an adjustment. Although she tried to wear the teeth she couldn't talk or eat with them. She considered they were too large and her jaws would not properly close. When she went back to Dr. Velez with her complaint he told her that he had made the teeth to fit and that she was going to have to wear them. She offered to pay him more if he would make another set that did fit but he declined. Velez then brought in another man who checked her teeth and took them out to the lab to work on. About an hour later Velez advised her that he would make her another set of plates and he took impressions to do so. He also asked for her old plate to be left there for a couple of days which she declined to do because she felt she could not get along without them. She did not return for the second set of teeth because she had become uneasy about the work Dr. Velez had done and stopped payment on her second check. Mrs. Thomas has worn dentures for approximately 40 years and this is the first time a dentist had asked her to leave her old dentures for a pattern.

   
   

8. Alfred W. Langley saw Dr. Velez in January, 1976 to have a set of dentures made. Dr. Velez took the impressions and when Langley returned approximately one week later for fitting, the teeth fit so badly that Velez would not let Langley out of the office with them. Velez took a second set of impressions but when Langley returned those teeth fit no better and a third impression was taken. When the third set of teeth was made, Langley took those home with him but they did not fit. They wouldn't stay in place and he could not talk with them. Subsequently he visited the consumer protection agency and obtained a letter from the dental board and from the consumer protection agency. When he confronted Dr. Velez with these letters Velez returned the money he had paid for the teeth. These letters from Dr. Waldheim and from the State Attorney's office were received into evidence as Exhibits 7 and 8.

   
   

9. Mrs. Louise Rodgers visited Dr. Velez in February, 1976 experiencing problems with her teeth. Another dentist had wanted to do root canals on some twenty-odd teeth but she didn't feel she could afford the approximately $4,000 she had been advised that treatment would cost. She visited Dr. Velez to see if extraction and dentures would be cheaper. Dr. Velez took x-rays and impressions prior to extracting the teeth. On March 4, 1976 Dr. Velez extracted 23 teeth

   and put in the plates that he had constructed from the earlier impressions. She immediately inquired if the upper plate was supposed to be as loose as the one in her mouth appeared to be. Under instructions she kept the plate in all afternoon but had to hold her finger on the plate for 3 or 4 hours until the swelling was sufficient to hold the plate in place. Later when she took them out to clean her mouth she couldn't get the plate back in because of the large bone in the way. The following Monday she called the office and was advised to come in on the 11th, some 7 days after the extractions. Dr. Velez was not there and one of the girls in the office tried to put the teeth in but couldn't. Mrs. Rodgers returned the following day and saw Dr. Velez who removed the bone fragment that was in the way. He tried to put the teeth back in but there was too much swelling and the upper part of the jaw was very irritated. When she returned on the 18th of March her gums were still tender but there was no longer any bleeding. On that visit Dr. Velez did some grinding on the teeth so they could be put in her mouth; however, they would not stay in place. Velez advised her to get something gummy and sticky to hold them in. She tried to wear the teeth but they felt too big and would not stay up. She went back on the 23rd of March complaining about her teeth not staying up. She was advised she had to get used to them but he would remake them if she would pay an additional fee of

   $78. When she called on April 22nd and asked to talk to Dr. Velez the girl said he was extremely busy and couldn't come to the phone. The receptionist advised that she would make her another appointment but she should wait for three weeks. During this time she was still trying to wear the dentures but couldn't eat with them, talk with them, and the uppers kept falling down. When she did return for her final appointment he advised she was just going to have to wear them until she could get used to them. After complaining to the Dental Board Mrs. Rodgers was advised to visit Dr. Waldheim. When Dr. Waldheim examined Mrs. Rodgers in June, 1976 he found that her gums had healed but the teeth did not fit. The occlusial relationship was badly off and the teeth could not be adjusted to fit. Dr. Waldheim further opined that extracting 23 teeth at one time and not seeing the patient until 10 days thereafter was very poor dental practice. In his opinion the patient should always be seen the following day if as many as 23 teeth were extracted.

   
   

10. Mrs. Sarah Gier visited Dr. Velez in February, 1976 to have new dentures made. Velez advised her that she could have the $98 set or the $150 deluxe set, but that the $150 teeth were worth approximately $600. She selected the $150 set. At this visit Dr. Velez took impressions and when she returned on February 19 for the teeth the upper dentures appeared all right. Dr. Velez acknowledged that the bottom dentures were wrong and would have to be made over. He then took impressions for the lower plate but when she returned for them they didn't fit. Dr. Velez instructed her to try and wear them. She tried but couldn't wear them because they hurt too badly. When she returned on March 1, a boy in the office removed her teeth, took them back to the lab to work on them. When he returned they still did not fit and he made a second adjustment. When Dr. Velez appeared he advised her that she would probably have to use powder and that it may be several weeks before she would get used to the teeth. Inasmuch as each visit was now costing $10 she didn't feel that she could make more visits. On March 4th Mrs. Gier called and asked for her money back. Initially the receptionist said all right, but called back and advised that Dr. Velez had changed his mind and could not give her money back. Subsequently when she and her husband stopped by to see Velez he told her if she didn't leave he would call the police. Later she visited Dr. Waldheim, to whom she had been referred by the Dental Board. Dr. Waldheim found the dentures did not fit as they were too large and the jaws could not close to their natural position. Using the witness as a model Dr. Waldheim had her insert the teeth at the hearing. It was

    clearly evident that the jaws were extended by the teeth and the lips would not close. In Dr. Waldheim's opinion those teeth could never be made to fit.

    
    

11. In February, 1976 Mr. Joseph Marrone visited Dr. Velez to have dentures made. He had heard that Dr. Velez was reasonable and the next door neighbor had recommended Dr. Velez. He had a partial plate held by three teeth on the, bottom that needed to be pulled. When Dr. Velez examined him Marrone was advised it would be better to pull the bottom and top teeth and make a full set of dentures. On the first visit Dr. Velez made impressions for the lower plate. On Mr. Marrone's second visit the lower plate was ready and was placed in his mouth. Although the receptionist told him not to take them out they hurt so badly that he had to. When he returned a few days later two girls in the office examined his teeth and made adjustments on them. However, the teeth never fit and were causing bruises and sores in the gums. He could not eat with them. Thereafter Dr. Velez made a second full set of teeth, but they too did not fit. After several adjustments were made Velez advised this would be the last time he could adjust them and if they didn't work he could do nothing more about it. Mr. Marrone then asked him to return his money `and he would go to a dentist who could prepare him a set of dentures he could wear. When Marrone subsequently complained to the dental board he was referred to Dr. Waldheim.

    Dr. Waldheim's examination of the dentures showed the lower plate extended and it could not be corrected to fit. Mr. Marrone was then referred to another dentist who was able to adjust the upper plate that had been made by Dr. Velez to fit but it was necessary to make a new lower plate for Mr. Marrone.

    
    

12. With respect to the various patients of Dr. Velez that had been seen by Dr. Waldheim due to improperly fitting dentures, Dr. Waldheim expressed the opinion that the most probable cause of the ill-fitting dentures was in the manner in which the impressions were taken or in the material used in taking the impressions. If improper impression material was used it could have changed from the time the impression was taken until the time it was used for the mold for the dentures. None of the dentures made for the patients of Dr. Velez that were seen by Dr. Waldheim could have been adjusted so they would fit.

    
    

13. Connie Bragdon and Marie Minzenberger worked in Dr. Velez's office in 1975 and 1976. Both had received training from Dr. Velez, both worked as Dr. Velez's assistants, both took impressions from which dentures were made, and both adjusted dentures. They were instructed to give a copy of the letter, admitted into evidence as Exhibit 9, to all patients. These letters contained a map showing the location of the office on the back and advised the prices that the doctor charged for various services. Letters similar to those in Exhibits 2, 4 and 9 were mailed to patients who called and requested information.

    
    

14. Rebecca Velez, wife of Dr. Velez, testified over the objection of the attorney for Respondent, who objected on grounds of the husband and wife privilege. Mrs. Velez had worked in the office for approximately one and one half years in 1975 to early 1976. She too had received no previous training. She acknowledged that Exhibits 2 and 4 were very similar to those that were in the office and were given to all patients who visited the office.

    
    

15. Dr. Henry Gagliardi, D.D.S. is a dental educator who established a dental hygiene school at the Florida Junior College in Jacksonville. Dr. Gagliardi defined a dental auxiliary as an individual working with or for a dentist. This person can be either a dental assistant or a hygienist; however, the latter requires a license and two years training. A dental assistant may be employed with no preparation or training. A hygienist can scale teeth, use instruments in the mouth, and take impressions. A person not licensed by the

    dental board may not legally take impressions from which a prosthetic device will be made, but they may take impressions for diagnostic purposes only. A dental assistant may not alter a prosthetic appliance (denture). If an extension on a prosthetic device causes problems to the patient the diagnosis and correction of this problem must be done by a dentist. Since the determination of the accuracy of the bite on a prosthetic device is very important, this is another task that must be done by the dentist and not by an auxiliarist.

    
    

16. Dentures are often placed into the oral cavity immediately after extraction and when so done they act as a splint until the cavities heal. In the normal process gums will shrink following extraction of teeth and thereafter the dentures will require adjustment. Improperly fitting dentures can cause lack of equilibrium in the jaws, sore gums, and sores in the mouth.

    
    

17. In December, 1973 Mrs. Norma Laursen, daughter-in-law of Margaret B. Laursen, visited Dr. Velez on an emergency basis to have a broken tooth repaired. Dr. Velez was unable to take her case at that time. Several months later she and her husband received an envelope in the mail containing a letter which was introduced into evidence as Exhibit 2. The introduction of Exhibit 2 was objected to on the grounds that there was no evidence that it was signed by Dr. Velez or sent by Dr. Velez. Ruling on this motion was deferred at that time. Since subsequent exhibits indicate that this letter was one of many of a similar kind that were distributed to various individuals, the objection is overruled and Exhibit 2 is admitted into evidence. Robert E. Laursen corroborated the testimony of his wife, Norma.

    
    

18. James E. Stone, of Titusville visited Dr. Velez while Velez was practicing in Titusville some two and one half to three years ago. He had chipped a tooth over the week-end and went in to see Dr. Velez for emergency repairs on a following Monday. Dr. Velez took x-rays, filed the tooth down, and advised Mr. Stone that in the future he may need a root canal. Dr. Velez was never his family dentist. Some months later he received in the mail a letter which was offered into evidence as Exhibit 4. Mrs. Stone corroborated the testimony of Mr. Stone with respect to the receipt of Exhibit 4 in the mail. Exhibit 4 was objected to on the same grounds as Exhibit 2 and at the time the ruling on the objection was deferred. For the same reasons given above, Exhibit

    4 is now admitted into evidence.

    
    

19. Six witnesses, Susan Weiler, Daryl DeVevc, Gustav Jicha, Daisy Smith, Robert B. Smith, and Janice Sidley testified on behalf of Dr. Velez. All had received treatment from Dr. Velez and considered him to be an excellent dentist who did very fine work for each of them. Some had experienced difficulties with dentures made by other dentists, but those prepared by Dr. Velez were excellent. A series of commendatory letters addressed to Dr. Velez were admitted into evidence as Exhibit 13. Attached thereto is an affidavit signed by some 57 former patients to the effect that Dr. Velez had performed dental work on them and they were completely satisfied with his service, his professional conduct and competence as a dentist. Copies of various certificates held by Dr. Velez were admitted into evidence as Composite Exhibit 14.

    
    

    CONCLUSIONS OF LAW

    
    

20. Section 466.04 Florida Statutes provides in part:

    
    

    "Any person shall be deemed to be practicing dentistry who performs, or attempts or

    professes to perform, any dental operation,

    . . .or who directly or indirectly, by any means or methods, takes an impression of the human tooth, teeth, or jaws; or repairs any prosthetic denture, bridge, appliance, or any other structure designed to be worn in the human mouth. . . or adjusts or attempts or professes to adjust the same;. . .

21. 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:

    1. Is grossly ignorant or incompetent;

    2. Has been guilty of:

(a) Misconduct either in his business or in his personal affairs which would bring discredit upon the dental profession;

1. Malpractice;

2. Willful negligence in the practice of dentistry or dental hygiene;

3. 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;

(g) Advertising in any manner his professional services in the practice of dentistry of the cost or fees there for in this state in a manner not expressly authorized by this chapter; claiming or inferring of professional superiority over other practitioners;

(n) Violating any other provision of this chapter regulating the practice of dentistry or dental hygiene."

1. Chapter 21G-9 F.A.C., under "Tasks which may be performed by dental auxiliaries", provides in pertinent part:

   
   

   "21G-9.03

   1. Take impressions for complete mouth study cast using irreversible hydrocolloide. This cast may not be used for the fabrication of any appliance designed to be worn in the human mouth."

      
      

2. The large majority of the accusations against Dr. Velez stem from his fabrication of ill-fitting prosthetic devices for various patients. Evidence of these improperly fitting dentures provide the basis for Count I, that respondent is grossly incompetent and unfit to continue the practice of dentistry; and of Count II, Count IV(a), Count V(a), Count VI(a), Count VII(a), Count VIII(a) and Count IX(a) that respondent was guilty of gross neglect and malpractice.

   
   

3. It is a well settled rule of law that a dentist is liable to his patient for a failure to exercise requisite skill and care. That means that he

   must possess that reasonable degree of learning, skill, and experience which ordinarily is possessed by others of his profession, and that he must exercise reasonable and ordinary care in the exercise of his skill and the application of his knowledge, and exert his best judgment as to the treatment of a case entrusted to him. 25 FLA. JUR, Physicians and Surgeons s77 and cases there cited.

   
   

4. While a dentist is not a guarantor of his diagnosis or treatment he does hold himself out, and the law so requires him, to provide prosthetic devices capable of performing the function intended. Dentists purportedly receive adequate training for, and hold themselves out to be capable of, preparing prosthetic devices for the oral cavity that can be used by their patients. Even in the non-professional world the law imposes an implied warranty that most products are fit for the purpose intended. Preparing and fabricating dentures which cannot be worn or used by the patent and refusing to take steps necessary to correct obvious deficiencies in such dentures constitutes a prima facie case of gross negligence, incompetence and malpractice by a dentist.

   
   

5. Count IV(b) alleges misconduct in Velez's dental business affairs by advertising a full set of dentures for $98 and then "convincing" patients to purchase the $150 "deluxe" set of dentures when they arrive in response to the advertised price. Although a violation of Chapter 501.201 et seq. F.S. is not alleged, the acts complained of are similar to those proscribed by this statute. Rules promulgated by the Department of Legal Affairs, Division of Consumer Services, are contained in Chapters 2-9, F.A.C. Rule 2-9.04 F.A.C. headed "Bait and Switch" defines unfair and deceptive act or practice to be advertising a product or service for sale when the advertisement is not a bona fide offer to sell the advertised product or service.

   
   

6. While the acts complained of are similar to an illegal bait and switch operation, here there was no evidence of a refusal to show, demonstrate, or sell the advertised dentures.

   
   

7. Section 466.24(3)(g), F.S. proscribes advertising fees for professional services. The allegation in Count IV(b) is essentially false advertising and the evidence adduced will not support such a charge regardless of the unsavory aspects of such conduct.

   
   

8. Several counts in the Complaint charged that Velez permitted office personnel, unlicensed by the Board of Dentistry, to perform on patients dental work constituting the practice of dentistry and not permissible under the rules and regulations for dental auxiliaries. The evidence was unrebutted that at least two of the dental auxiliaries who worked for Dr. Velez took impressions of patients' mouths from which dentures were made and they adjusted and fitted dentures on Dr. Velez's patients.

   
   

9. In addition to at least seven sets of ill fitting (or non-fitting) dentures, there was evidence that improper dental work was performed in doing root canals on three adjoining teeth at one time; in extracting as many as 23 teeth at one time and instructing the patient to return 10 days later; in not seeing a patient whose gums had become infected following extraction; and, while extracting a tooth, breaking off and leaving a large root in the cavity and then trying to fit a plate on top of the root that had been left. When all the evidence presented is considered the conclusion is reached that Dr. Velez is incompetent, grossly negligent, and performed dental services below the standards of the profession.

10. Counts X, XI, and XII of the Complaint allege Dr. Velez advertised his professional fees and services in a manner not authorized by Chapter 466 and in violation of s466.24(3)(g) F.S. above quoted. At least two people who were not regular patients of Dr. Velez received letters in the mail (Exhibits 2 and 4) which were unsolicited and which can be interpreted only as an attempt to advertise Dr. Velez's services and fees. His office personnel were instructed to pass out similar letters to every patient who visited his office. These acts constitute unauthorized advertising.

    
    

11. While no attack upon the constitutionality of the statute as an infringement on First Amendment rights under the U.S. or Florida Constitutions was made, and the undersigned would not have the jurisdiction to determine the statute prescribing advertising unconstitutional, recent decisions have tended to restrict the right of states to ban certain advertising and a short comment on the law in this regard appears in order.

    
    

12. The right of states to ban advertisement of certain professional services and fees have been recognized for many years. In Semler v. Oregon State Board of Dental Examiners, 55 S. Ct. 570 (1935) the Supreme Court, in upholding the constitutionality of such a statute, stated:

    
    

    "We do not doubt the authority of the state to estimate the baleful effects of such methods [of advertising] and to put a stop to them.

    The legislature was not dealing with trades in commodities, but with vital interest of public health, and with a profession treating bodily ills and demanding different standards of conduct from those which are traditional in the market place. The community is concerned with the maintenance of professional standards which will insure not only competency in individual practitioners, but protection against those who would prey upon a public peculiarly susceptible to imposition through alluring promises of physical relief. And the community is concerned in providing safeguards not only against deception, but against practices which would tend to demoralize the profession by forcing its members into an unseemly rivalry which would enlarge the opportunities of the least scrupulous. What is generally called the 'ethics' of the profession is but the consensus of expert

    opinion as to the necessity of such standards."

    
    

13. In the recent case of Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 96 S. Ct. 1817 (1976) the Supreme Court carefully limited the decision to advertising drug prices and in Note 25 at p. 1831 stated:

    
    

    "We stress that we have considered in this case the regulation of commercial advertising by pharmacists. Although we express no opinion

    as to other professions, the distinctions, historical and functional, between

    professions, may require consideration of quite different factors. Physicians and lawyers, for example, do not dispense standardized products; they render professional services of almost infinite variety and nature, with the consequent enhanced possibility for confusion and deception if they were to undertake certain kinds of advertising."

    
    

14. From the foregoing it is concluded that Dr. Frank A. Velez, Jr. is guilty of Counts I, II, IV(a), V, VI, VII, VIII, IX, X, XI, and XII of the Accusation and that he is not guilty of Counts III and IV(b). It is therefore,

RECOMMENDED that the license to practice dentistry in the State of Florida issued to Frank A. Velez, Jr., D.D.S. be revoked.

DONE and ENTERED this 25th day of October, 1976, in Tallahassee, Florida.

K. N. AYERS 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 25th day of October, 1976.

Docket for Case No: 76-000792

Orders for Case No: 76-000792