STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 82-370

)

L. A. BRABOY, D.D.S., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was conducted in the above matter on November 10, 1982, in Orlando, Florida. The following appearances were entered: Salvatore A. Carpino, Tallahassee, Florida, appeared on behalf of the Petitioner, Department of Professional Regulation, Board of Dentistry; Vaughn C. Brennan, Winter Haven, Florida, appeared on behalf of the Respondent, L. A. Braboy.

On or about December 8, 1981, the Petitioner issued an Administrative Complaint against the Respondent. The complaint is in ten counts and alleges various violations of statutory provisions relating to the practice of dentistry. All of the allegations relate to prescriptions for controlled substances. The Respondent contested the allegations of the complaint and requested a formal administrative hearing. The hearing was originally scheduled to be conducted on May 20, 1982. The hearing was convened at the appointed time and place. The parties entered into negotiations and ultimately agreed that Counts I, II, and X of the Administrative Complaint would be dismissed, with the Respondent admitting the allegations of the remaining counts. Based on this understanding, the parties agreed to present the matter directly to the Board of Dentistry as an informal proceeding in accordance with Section 120.57(2), Florida Statutes, there being no disputed issues of fact.

When the informal proceeding was conducted before the Board of Dentistry, it became apparent that the Respondent was continuing to assert disputed issues of fact. Accordingly, the matter was returned to the Division of Administrative Hearings for the rescheduling of a hearing. The final hearing was scheduled as set out above by notice dated September 29, 1982. The Petitioner called John Paul Spanogle, an investigator employed by the Petitioner, as its only witness. The Respondent testified as a witness on his own behalf. Petitioner's Exhibits

1 through 5 and Respondent's Exhibits 1 through 6 were offered into evidence and received.

The Petitioner has submitted a proposed recommended order which includes proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are specifically set out in the Findings of Fact and Conclusions of Law which follow. They have been otherwise rejected as not supported by the evidence, contrary to the better weight of the evidence, irrelevant to the issues, or legally erroneous.

ISSUES

The ultimate issues to be resolved in this matter are whether the Respondent has committed violations of Florida Statutes relating to the practice of dentistry and, if so, what penalty should be imposed. Petitioner contends that the Respondent issued prescriptions for controlled substances other than in the practice of dentistry, that he prescribed controlled substances in excessive quantities not in the best interest of his patients, and that his prescriptions reflect that Respondent is incompetent because he failed to meet the minimum standards of performance in his practice. The Respondent contends that his prescriptions were issued in the normal course of his practice of dentistry.

At the outset of the hearing, the Petitioner announced that it would not pursue Counts I and II of the Administrative Complaint. No evidence was offered at the hearing in support of the allegations of Counts I and II.

FINDINGS OF FACT

1. The Respondent is licensed by the Board of Dentistry to practice dentistry in the State of Florida. He has been engaged in the practice of dentistry in Orlando, Florida, for approximately thirty years. His practice includes all areas of dentistry. The Respondent is a respected member of his community and has not previously been the subject of any disciplinary proceedings by the Petitioner.

   
   

2. On or about December 28, 1977, the Respondent prescribed 30 Preludin Endurets to Dolly Robinson for the treatment of a nervous condition. On or about April 4, 1978, the Respondent prescribed 24 Biphetamine-20 tablets; and on or about January 27, 1979, the Respondent prescribed 30 Biphetamine-20 tablets to Geraldine Marsten for treatment of obesity and hypertension. The Respondent wrote the following prescriptions to Gail Rogers for the treatment of obesity:

   30 Biphetamine-20 tablets on January 20, 1979; 15 Dilaudid tablets on August 25, 1979; and 30 Biphetamine-20 tablets on August 25, 1979. On or about December 29, 1978, the Respondent prescribed 50 Biphetamine-20 tablets to Joyce McIntire. On or about December 29, 1978, the Respondent prescribed 50 Biphetamine-20 tablets to Jean Swift. On or about October 8, 1979, the Respondent prescribed

   30 Dilaudid tablets to James (Timmy) Young; and, four days later, the Respondent prescribed 30 more Dilaudid tablets to the same person.

   
   

3. Preludin, Biphetamine, and Dilaudid are controlled substances appearing in Schedule II, Section 893.03(2)(a)1(k) Florida Statutes. The prescriptions that the Respondent wrote for these substances, as set out in Paragraph 2 above, were not issued in the proper course of the practice of dentistry. The Respondent's testimony that the prescriptions were issued in order to lower a patient's blood pressure or to assist the patient in losing weight so that oral surgery could be more safely performed is not deemed a credible explanation for the prescriptions. The Respondent's explanation for other prescriptions being issued to alleviate pain connected with dental problems is not credible given the amount of drugs prescribed.

   
   

4. In 1979, 70 percent of the prescriptions that the Respondent wrote were for Dilaudid, and 5 percent were for Biphetamine-20. In 1980, 96 percent of the Respondent's prescriptions were for Dilaudid. Between January and August, 1981, the Respondent wrote 36 prescriptions, 35 of which were for Dilaudid. These prescriptions were excessive and unnecessary in the proper practice of dentistry.

5. No evidence was offered at the hearing from which it could be concluded that the Respondent profited personally from the writing of prescriptions for controlled substances. No evidence was offered from which it could be determined that the Respondent was incompetent or that he failed to meet minimum standards of performance in the diagnosis and treatment of his patients when measured against prevailing peer performance.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.57(1), 120.60, Florida Statutes.

   
   

7. The scope of the practice of dentistry is set out at Section 466.003(3), Florida Statutes. Basically, "dentistry" is the healing art concerned with the examination, diagnosis, care, and treatment of conditions within the human oral cavity and its adjacent tissues and structures. A dentist who prescribes a controlled substance--or indeed any drug--other than in the course of the practice of dentistry, or who practices or offers to practice beyond the scope of the practice of dentistry has committed acts which constitute grounds for which disciplinary action can be taken. See: Sections 466.028(1)(g) and (z), Florida Statutes (1981). The same conduct was proscribed under earlier provisions of law. See: Sections 466.24(1)(n), 466.22, and 466.04, Florida Statutes (1977). The prescriptions which the Respondent issued for controlled substances were not made in the course of the practice of dentistry, and the Respondent therefore practiced beyond the Scope allowed by law in connection with the prescriptions. The Respondent committed the violations of Sections 466.028(1)(q) and (z), Florida Statutes, and predecessor statutes, as alleged in Counts III through IX of the Administrative Complaint.

   
   

8. The Petitioner announced at the hearing that it would not pursue Counts I and II of the Administrative Complaint. No evidence was offered during the hearing in support of Count X.

   
   

9. Actions that the Board of Dentistry can take based upon violations of the provisions of Section 466.028(1), Florida Statutes, are sat out at Paragraph

1. of the section. Penalties include: revocation or suspension of a license, imposition of an administrative fine not to exceed $1,000 for each count or separate offense, placement of the licensee on probation for a period of time subject to such conditions as the Board may specify, and restricting the authorized scope of the licensee's practice. The Respondent's conduct constitutes serious violations of laws respecting the practice of dentistry. It appears that he has disregarded the proper scope of his practice and that he has prescribed drugs which could adversely impact the health of his patients. It is appropriate that the Respondent be suspended from the practice of dentistry for a specified period, that he pay a fine, and that any future practice of dentistry by the Respondent be restricted to prohibit him from prescribing any controlled substances.

   
   

   RECOMMENDED ORDER

   Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby

   
   

   RECOMMENDED:

   
   

   1. That a final order he entered by the Board of Dentistry dismissing Counts I, II, and X of the Administrative Complaint against the Respondent.

      
      

   2. That a final order be entered by the Board of Dentistry finding the Respondent guilty of the allegations set out in Counts III through IX of the Administrative Complaint; suspending the Respondent's license to practice dentistry for a period of one year; imposing an administrative fine against the Respondent in the amount of $1,000; and restricting any future practice of dentistry on the part of the Respondent so that he be prohibited from issuing prescriptions for any controlled substances, this prohibition to include a requirement that the Respondent voluntarily relinquish all federal and state authorizations that allow him to issue prescriptions for controlled substances.

RECOMMENDED this 28th day of December, 1982, in Tallahassee, Florida.

G. STEVEN PFEIFFER Assistant Director

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 28th day of December, 1982.

COPIES FURNISHED:

Salvatore A. Carpino, Esquire Staff Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Vaughn C. Brennan, Esquire Post Office Box 1667

Eaton Park, Florida 33840

Mr. Fred Roche Secretary, Department of

Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Fred Varn Executive Director Board of Dentistry

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION DIVISION OF PROFESSIONS

BOARD OF DENTISTRY

IN RE:

L. A. BRABOY, D.D.S.

220 South Parramore Avenue CASE NO. 82-370 Orlando, Florida 32805 License No. 1061

Respondent.

/

FINAL ORDER

THIS MATTER came before the Board pursuant to Section 120.57(1)(b)9., Florida Statutes (1981), on Saturday, March 26, 1983, in Fort Pierce, Florida, for consideration of the Recommended Order (a copy of which is attached hereto and incorporated herein by reference) issued by the hearing officer and the exceptions filed thereto in the case of Department of Professional Regulation, Board of Dentistry v. L. A. Braboy, D.D.S., Case No. 82-370. The Petitioner was represented by Salvatore A. Carpino, Esquire. The Respondent was represented by Deborah J. Miller, Esquire.

Upon consideration of the hearing officer's Recommended Order, the exceptions filed by the parties, having taken official recognition of the minutes of the December 4, 1981, meeting of the Board's probable cause panel, and after a review of the complete record in this matter, it is hereby ORDERED AND ADJUDGED:

FINDINGS OF FACT

1. The hearing officer's findings of fact are hereby approved and adopted in toto.

   
   

2. Paragraphs number 1, 2 and 3 of Respondent's Exceptions to Recommended Order are rejected as there is competent, substantial evidence to support the hearing officer's findings of fact.

CONCLUSIONS OF LAW

1. The hearing officer's conclusions of law are hereby approved and adopted in toto.

   
   

2. Paragraphs number l, 2 and 3 of Respondent's Exceptions to Recommended Order are rejected as there is competent, substantial evidence to support the hearing officer's conclusions of law.

   
   

3. Paragraph 5 of Respondent's Exceptions to Recommended Order is rejected as not having been timely raised either prior to or at the time of the formal administrative hearing. See Beckum v. State of Florida, Department of Professional Regulation, Board of Optometry, So.2d (Fla. 1st DCA Case No. AR- 104, Opinion issued February 16, 1983).

   
   

4. Both parties have taken exception to the hearing officer's recommended penalty. The Petitioner suggests that the recommendation is too lenient and requests that Respondent's license be revoked and that he be assessed an administrative fine in the amount of $7,000.00. Respondent contends that the recommended penalty is too harsh. Although the Board rejects the hearing officer's recommended penalty as not appropriate under the facts of this case, neither of the penalties urged by the parties is accepted and, accordingly, the exceptions going to this issue are rejected.

WHEREFORE, it is ORDERED AND ADJUDGED that the Respondent, L. A. Braboy, is guilty of the charges contained in Counts III, IV, V, VI, VII, VIII and IX of the Administrative Complaint. The Florida dental license of L. A. Braboy is suspended for a period of three (3) years beginning the date of rendition of this Order. However, the suspension is withheld and the Respondent is placed on probation for this three (3) year period. The probation is subject to the conditions that Respondent successfully complete fifty (50) hours of continuing education, thirty (30) hours of which must be in pharmacology; that Respondent may prescribe, procure, dispense or administer only Schedule III, IV and V drugs and must submit to the Board on a monthly basis a duplicate copy of all prescriptions he writes; and that Dr. Sistrunk submit quarterly reports to the Board of his evaluation of Respondent's practice. The Respondent is assessed an administrative fine in the amount of one thousand dollars ($1,000.00) which shall be paid in equal monthly installments of fifty dollars ($50.00) beginning thirty (30) days from the date of rendition of this Order.

DONE AND ORDERED this 22 day of April, 1983.

RANK KENWARD, D.D.S.

Chairman

Board of Dentistry

cc: Salvatore A. Carpino, Esquire

130 North Monroe Street Tallahassee, Florida 32301

Deborah J. Miller, Esquire Suit 450

2121 Ponce de Leon Boulevard Coral Gables, Florida 33134

Docket for Case No: 82-000370

Orders for Case No: 82-000370