STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) PROFESSIONAL REGULATION BOARD ) OF DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1371

)

WILLIAM G. WEIT, 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 case on 14 December 1981 at Fort Myers, Florida.

APPEARANCES

For Petitioner: Carol L. Gregg, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Norman A. Hartman, Esquire

Post Office Drawer X

Fort Myers, Florida 33902

By Administrative Complaint, undated, but received in the Division of Administrative Hearings May 14, 1981, the Department of Professional Regulation, Board of Dentistry, Petitioner, seeks to revoke, suspend, or otherwise discipline the license of William G. Weit as a licensed dentist. As grounds therefor, it is alleged that Respondent is unable to practice dentistry with reasonable skill and safety to patients because of his excessive use of alcohol.

At the commencement of the hearing Petitioner's attorney advised that her principal witness had become ill and was unable to come to the hearing and requested a continuance. This request was denied; however, Petitioner was advised that the case would be held open for the testimony of this expert witness to be submitted by deposition. Thereafter, two witnesses were called by Petitioner; five witnesses, including Respondent, were called by Respondent and two exhibits were admitted into evidence. The deposition of Delores A. Morgan, M.D., was received January 11, 1982, and has been accepted into evidence.

Proposed findings submitted by the parties and not included below are rejected as being irrelevant or not supported by the evidence.

FINDINGS OF FACT

1. At all times here relevant Respondent was licensed as a dentist in Florida, and has been so licensed since 1958.

   
   

2. On June 10, 1980, Gerald S. Shea, an investigator for Petitioner, visited Respondent's office in Fort Myers, Florida, pursuant to a prearranged, appointment. At this time the office was open but Shea did not observe Respondent do any work on any patient, nor did he observe any patient apparently awaiting the services of Respondent. At the time of this meeting Respondent appeared to be under the influence of alcohol or drugs. His speech was slurred and measured, he was unsteady on his feet, and did not appear in full control of his faculties. Respondent acknowledged that he had treated patients that morning before Shea's visit.

   
   

3. At this meeting Respondent acknowledged he had problems with alcoholism, that he had enrolled in rehabilitation programs several times, and that he recognized his problem was sufficiently severe to need help.

   
   

4. Ms. Kellum was a patient of Respondent in August 1980. She visited his office for a dental check once while pregnant and again after the birth of her child. On this latter visit, which occurred on a Friday, Respondent filled one tooth and made remarks Ms. Kellum considered inappropriate as having sexual connotations. She experienced pain at the gum line over the weekend and returned to Respondent's office Monday. He assured her there was nothing wrong with the tooth he had filled but ground down molars and picked at the filling he had installed on Friday and pulled it out. He then refilled the tooth. During this time Ms. Kellum testified Respondent intentionally touched her breasts twice. Although Respondent's eyes appeared bloodshot and he failed to locate the source of the pain at the gum line, Ms. Kellum did not testify she believed, or had any reason to believe, Respondent was under the influence of drugs or alcohol. Respondent denied the misconduct to which Ms. Kellum testified.

   
   

5. Respondent has a long history of a drinking problem. He has been convicted four times for driving while intoxicated and his driver's license is currently revoked.

   
   

6. Respondent has been admitted to the federal rehabilitation facility at Bowling Green, Kentucky, twice for alcoholism. On one visit he stayed five weeks and on the other visit he stayed ten days. Following the serving of the Administrative Complaint Respondent was admitted as an inpatient to the rehabilitation program at South Miami Hospital for five weeks.

   
   

7. Upon his departure there from Respondent agreed with the director, Dr. Morgan, that he would totally abstain from alcohol, attend Alcoholics Anonymous at least three times per week, and maintain close contact with two doctors in the area who formerly had a similar problem. He failed to comply with these conditions.

   
   

8. Respondent is an alcoholic and has as yet not accepted the fact that he is unable to have an occasional "social" drink without the danger of going off the deep end. He has a "wet" brain, which, unless dried out by a long period of abstinence from alcohol, will result in mental impairment manifesting itself in distortion of judgment. He is already evidencing some such distortion.

9. Respondent has continued to deny in his own mind that he is an alcoholic with an illness which precludes him taking a drink. Until he accepts this fact he will continue to endanger his health and the safety of his patients. Respondent verbalizes the words acknowledging his alcoholism but is as yet unwilling to accept the fact that his only salvation is total abstinence. Until he does so he will remain in jeopardy and a potential hazard to his patients. This latter is true because of the impairment already experienced to his mental faculties and judgment which continued intemperance will aggravate.

   
   

10. Four witnesses testified to the excellent treatment they received as patients of Respondent and that they had never observed him under the influence of alcohol. Exhibit 2 comprised some fifty letters from patients of Respondent, some for more than twenty years, all attesting to his good dental work and that they had never observed him under the influence of alcohol.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

12. The sole charge made against Respondent is that he is unable to practice his profession with reasonable skill and safety to his patients because of his alcoholism. Section 466.028(t), Florida Statutes (1979), which was the operable statute at the time here involved, provides the following is a ground for disciplinary action:

    
    

    Being unable to practice his profession

    with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition. A licensee affected under this paragraph shall at reasonable intervals be afforded an opportunity to demonstrate that he can resume the competent practice of his profession with reasonable skill and safety to patients.

    
    

13. The evidence that Respondent is unable to practice his profession with reasonable skill and safety to his patients comes exclusively from the testimony of Dr. Delores Morgan, the Director of the Addiction Treatment Program at South Miami Hospital where Respondent underwent treatment for five weeks. Although this witness is accepted as an impressive expert in the field of alcohol abuse, she recommended Respondent be allowed to continue his practice before she learned that he had broken the agreement he made with her to refrain from partaking of all alcoholic beverages.

    
    

14. The evidence here presented is greatly different from that held sufficient by the Court in Erwin v. Department of Professional Regulation, Board of Dentistry, 320 So.2d 2 (Fla. 2 DCA 1975). In Erwin several witnesses testified to Erwin's intoxication while in the office, of his treating patients while intoxicated, and of cancelling appointments due to his intoxication.

    Here, the only witness to testify that Respondent appeared under the influence of alcohol while in his office was Investigator Shea and Shea did not observe Respondent work on patients while in such a condition.

15. Respondent is currently unable to practice his profession with reasonable skill and safety to patients by reason of his use of alcohol. This is a situation that can be corrected by Respondent's abstinence from alcohol. Alcoholism is an illness Respondent may not be able to cure without assistance. Whether he gets that assistance depends on how badly he wants the help or how necessary he believes such help to be.

    
    

16. From the foregoing it is concluded that William G. Weit, D.D.S., is unable to practice his profession with reasonable skill and safety to his patients by reason of his being an alcoholic unable to accept the inevitable abstinence needed for his rehabilitation. It is, therefore,

RECOMMENDED that the license of William G. Weit to practice dentistry be suspended for two (2) years. In view of the absence of direct evidence that Respondent has treated patients while intoxicated, it is further,

RECOMMENDED that this suspension be stayed for a three-year probationary period during which time Respondent shall attend Alcoholics Anonymous at least three (3) times per week, refrain from all use of alcoholic beverages, and make such reports or comply with such other conditions as the Board may designate.

At the expiration of this probationary period, unless sooner vacated for violation of the conditions of probation for other good cause, the suspension shall be set aside and Respondent restored to good standing.

ENTERED this 21st day of January, 1982, at Tallahassee, Florida.

K. N. AYERS, 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 21st day of January, 1982.

ENDNOTE

1/ Petitioner's and Respondent's Exhibits will be referred to as "P- ," and "R- ," respectively.

COPIES FURNISHED:

Carol L. Gregg, Esquire Assistant General Counsel Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Norman A. Hartman, Esquire GOETZ & HARTMAN, P.A.

Post Office Drawer X

Fort Myers, Florida 33902

Samuel Shorstein, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 81-001371

Orders for Case No: 81-001371