vs. ) CASE NO. 77-2189
JAMES R. DAVIS, III, )
Respondent. )
Pursuant to notice, an administrative hearing was held in Room 338, Orange County Courthouse, Orlando, Florida on February 17, 1978 beginning at 10:30 A.M. before Delphene C. Strickland, Hearing Officer, Division of Administrative Hearings, Department of Administration.
For Petitioner: L. Haldane Taylor, Esquire
For Respondent: James B. Byrne, Jr., Esquire
An accusation was filed against Respondent by the Petitioner complaining that Respondent had allowed unlicensed personnel to perform certain acts and duties which required a license to perform. Subsequently the parties stipulated that
Respondent's license to practice dentistry shall be suspended for a period of six months effective July 25, 1977. The opera- tion of said suspension will be cancelled thirty days after said date and thereafter Respondent will remain on probation, subject to periodic review for the remaining five months.
Respondent admits that the facts set forth therein do constitute a violation of Sections 466.02, 466.04 and 466.24, Florida Statutes.
The Petitioner in its final order dated July 25, 1977 accepted the stipulation and entered an order essentially quoting the stipulation:
Ordered and adjudged:
Respondent's license to practice dentistry shall be suspended for a period of six months effective July 25, 1977. The operation and said suspension will be cancelled thirty days after said
date and thereafter Respondent will remain on probation, subject to periodic review for the remaining five months.
On or about November 14, 1977 a second administrative accusation was filed by the Petitioner against Respondent Davis. It charged Respondent in part as follows:
That during the thirty day period in which the license of James R. Davis, III, D.D.S., was suspended pursuant to the final order,
James R. Davis, III, D.D.S., continued
to operate and maintain his dental practice by allowing his assistants, employees, and other licensed dentists to see and examine his patients, perform dental treatment and charge for dental services rendered.
That, based upon the above allegations, James
R. Davis, III, D.D.S., has violated the laws of Florida and the standards of his profes- sion because he has been guilty of misconduct in his business affairs in such a manner as to bring discredit upon the dental profession in violation of Florida Statutes Section 466.24(3)(a.
Respondent requested subject administrative hearing.
The Petitioner, Florida State Board of Dentistry, contends that the Respondent violated the suspension order by continuing to operate and maintain his dental practice by allowing his assistants, employees, and two dentists to see and examine his patients, perform dental treatment, and charge for dental services rendered.
Respondent, James R. Davis, III, contends that he did not violate the suspension order and denies that he has violated the laws of Florida and the standards of his profession, or that he has been guilty of misconduct in his business affairs in such a manner as to bring discredit upon the dental profession.
The depositions of Thomas Guilday, Esquire and Michael Huey, Esquire and Richard Langley, Esquire were admitted by stipulation into evidence. The testimony of Dr. William B. Kent III, Dr. Bruce Mitchell, Jr., Sally Dawson, Charlotte Mullins, and Dr. James R. Davis III were presented in person. Other
documentation pertinent to this hearing was admitted into evidence. The proposed Orders and memorandums were considered.
The Respondent, Dr. Davis, has practiced dentistry since 1971 as an employee of a Professional Association, James R. Davis, III, D.D.S., P.A. During the period beginning July 25, 1977 and continuing up to and including August 25, 1977, Dr. Davis did not personally practice dentistry in any manner. He was out of the city and on vacation the major part of that time.
Richard Langley, an attorney for Dr. Davis, informed Dr. Davis that the suspension did not pertain to the Professional Association offices of Dr. Davis or to its employees. It was the understanding of Mr. Langley through conversation with two attorneys for the Petitioner, Mr. Guilday and Mr. Huey, that the suspension by the Board went to Dr. Davis personally, and not to the Professional Association owned by Dr. Davis.
Neither the Stipulation nor the Final Order which preceded this hearing mentioned the Professional Association and both are styled "Florida State Board of Dentistry, Petitioner, versus James R. Davis, Respondent."
The Articles of Incorporation of James R. Davis III, D.D.S., P.A. is a matter of record having been filed August 16, 1971. The Professional Association is also indicated by his professional signs.
Dr. William B. Kent, III and Dr. W. Bruce Mitchell, Jr. were issued Board of Dentistry duplicate licenses to practice dentistry in the Respondent Davis' dental offices at 826 DeSoto Street, Clermont, Florida. Doctors Kent and Mitchell practiced dentistry as associates or employees of James R. Davis III, D.D.S, P.A. during the period of Dr. Davis' suspension and absence.
There are no guidelines, rules or regulations promulgated by the Petitioner Board which would have given Respondent Davis notice that the suspension would include his Professional Association and its employees. He was not notified verbally.
It cannot be assumed that Dr. Davis would close his office except as to a secretary informing those who called that Dr. Davis would not be in for a month, as Petitioner contends he should have. A dentist would not abandon his practice for such a period of time without making provisions for patients, particularly emergency situations absent a clear direction to do so. There is no evidence to show that he was to close the office.
CONCLUSIONS OF LAW
Section 466.243(a) Florida Statutes provides in part that a dental license may be revoked or suspended if the holder:
(3) has been guilty of:
(a) Misconduct either in his business or his personal affairs which would bring discredit upon the dental profession.
The Respondent did not violate the Final Order issued by the Board suspending him from practice of dentistry for a period of thirty days and he has not been shown to be guilty of any misconduct to bring discredit upon the dental profession in violation of the foregoing statute.
Enter an order finding that James R. Davis III is not guilty of violating the laws of Florida and the standards of his profession.
DONE and ENTERED this 6th day of March, 1978, in Tallahassee, Florida.
DELPHENE C. STRICKLAND
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32301
L. Haldane Taylor, Esquire 2516 Gulf Life Tower Jacksonville, Florida 32207
James B. Byrne, Jr., Esquire 1335 CNA Building
255 South Orange Ave. Orlando, Florida 32801
J. Michael Huey, Esquire Huey and Camper
Richard H. Langley, Esquire Post Office Box 188 Clermont, Florida 32711
