Judges: D. R. ALEXANDER
Agency: Department of Health
Latest Update: Jan. 28, 1983
Summary: Charge that dentist used unlicensed assistant was not sustained.
82-0770STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )
)
Petitioner, )
)
vs. ) CASE NO. 82-770
)
HAROLD I. ODLE, D.D.S., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing in the above case was held before the Division of Administrative Hearings by its duly designated Hearing Officer, DONALD R. ALEXANDER, on September 17, 1982, in Fort Myers, Florida.
APPEARANCES
For Petitioner: Theodore R. Gay, Esquire
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: Allan M. Parvey, Esquire
Post Office Box 2366
Fort Myers, Florida 33902 BACKGROUND
By administrative complaint filed on March 1, 1982, Petitioner, Department of Professional Regulation, Board of Dentistry, seeks to take disciplinary action against the dentist license of Respondent, Harold I. Odle, for allegedly violating Subsection 466.028(1)(bb), Florida Statutes, and Rules 21G-9.03(e) and 21G-16.03(3), Florida Administrative Code. Specifically, the Department alleges that on or about August 13, 1980, one Wilfred A. Bauer was treated by Respondent who extracted Bauer's tooth number 17; that on or about August 21, 1980, Bauer returned to Respondent's office for removal of the sutures placed in his mouth as a result of the extraction; that the suture removal procedure was performed by his dental assistant, who was not licensed as a dentist or dental hygienist; that Bauer left the office without having his mouth first examined by Respondent; and that by reason of the foregoing Respondent was guilty of violating the above cited statute and rules.
Respondent disputed these allegations and requested a formal hearing pursuant to Subsection 120.57(1) Florida Statutes, to contest the charges. The matter was forwarded to the Division of Administrative Hearings by Petitioner on March 18, 1982, with a request that a Hearing Officer be assigned to conduct a hearing.
By notice of hearing dated April 23, 1982, the final hearing was scheduled for July 29, 1982, in Fort Myers, Florida. At the request of Petitioner the matter was rescheduled to September 17, 1982, at the same location.
At the final hearing Petitioner presented the testimony of its investigator, Joseph Olhausen, and offered Petitioner's Exhibits 1-3; all were received in evidence. 1/
At the conclusion of Petitioner's case-in-chief, Respondent made an ore tenus motion for directed verdict. The motion was granted by the undersigned. The basis for granting the motion is set forth below.
The issue herein is whether Respondent should be disciplined for alleged violations set forth in the administrative complaint.
Based upon all of the evidence the following findings of fact are determined.
FINDINGS OF FACT
At all times relevant hereto, Respondent, Harold I. Odle, held dental license number DN 0004379 issued by Petitioner, Department of Professional Regulation, Board of Dentistry. Respondent is engaged in the practice of dentistry at 3900 South Broadway, Fort Myers, Florida.
On or about August 13, 1980, Wilfred H. Bauer went to Respondent's dental office where Respondent extracted Bauer's tooth number 17.
On or about August 21, 1980, Bauer returned to Odle's office for removal of sutures placed in his mouth in connection with the extraction performed on August 13. The removal procedure was performed by Julia Hover, an employee in Respondent's office. It was not disclosed whether Hover was licensed as a dentist or dental hygienist in the State of Florida.
The complainant in this case (Bauer) died in August, 1982 and accordingly did not appear and testify at the final hearing.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.
Subsection 466.028(1)(bb) , Florida Statutes, provides in relevant part as follows:
The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:
* * *
(bb) A violation or repeated violation of. . .any rule promulgated pursuant to chapter 455 or this chapter;. . .
Rule 21G-16.03(3), Florida Administrative Code, provides as follows:
(3) All other remediable expanded functions shall be formed (sic) by dental auxiliaries only under direct supervision.
It is alleged in the administrative complaint that a "suture removal procedure. . .was performed by Respondent's dental assistant, Julia Hover, who was not licensed as a dentist or dental hygienist in Florida." But to prove this charge, it must be shown that Hover was not licensed by the State of Florida. The Department's case-in-chief failed to address this crucial point, and having failed to show that Hover held no license, the motion for directed verdict was meritorious. 2/ This being so, the complaint should be dismissed.
RECOMMENDATION
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the motion for directed verdict be GRANTED and the
administrative complaint against Respondent be DISMISSED.
DONE and ENTERED this 29th day of September, 1982, in Tallahassee, Florida.
DONALD R. ALEXANDER
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 29th day of September, 1982.
ENDNOTES
1/ An objection to a document marked as Petitioner's Exhibit 4 was sustained during the hearing.
2/ Since a motion to dismiss is a more appropriate remedy for the relief sought in an administrative proceeding, Respondent's motion for directed verdict has been treated as the same.
COPIES FURNISHED:
Theodore R. Gay, Esquire
130 North Monroe Street Tallahassee, Florida 32301
Allan M. Parvey, Esquire
P. O. Box 2366
Fort Myers, Florida 33902
Docket for Case No: 82-000770
Orders for Case No: 82-000770
